Government of South Australia
GC21 (Edition 1 as amended)
General Conditions of Subcontract
for Design (to the extent specified) and Construction
Page ii of v
Department of Planning, Transport and Infrastructure 2009
This work is copyright. Apart from any use as permitted under the Copyright Act 1968
(Cwlth), no part may be reproduced by any process without written permission.
ACKNOWLEDGMENT
The South Australian Government Department of Planning, Transport and Infrastructure
acknowledges authority from the New South Wales Department of Finance and Services
to use the New South Wales Government GC21 (Edition 1) General Conditions of
Contract as the basis for this document.
Page iii of v
TABLE OF CONTENTS
SUBCONTRACT FRAMEWORK ...................................................................................... 1
Roles and relationships .............................................................................................. 1
1.
General responsibilities .............................................................................. 1
2.
Authorised persons .................................................................................... 1
3.
Co-operation .............................................................................................. 2
4.
Duty not to hinder performance .................................................................. 2
5.
Early warning ............................................................................................. 2
6.
Evaluation and monitoring .......................................................................... 2
The Subcontract .......................................................................................................... 3
7.
The Subcontract ......................................................................................... 3
8.
Assignment ................................................................................................ 3
9.
Governing law of the Subcontract............................................................... 3
10.
Scope of the Subcontract Works, Temporary Work and work methods ...... 3
Statutory Requirements and guidelines .................................................................... 5
11.
Statutory Requirements.............................................................................. 5
12.
Goods and Services Tax ............................................................................ 6
12A.
South Australian policy matters .................................................................. 7
12C. Australian Government Agreement ............................................................ 8
13.
Compliance with codes .............................................................................. 9
14.
Collusive arrangements.............................................................................. 9
15.
Work health and safety management ....................................................... 10
16.
Industrial relations management .............................................................. 10
17.
Quality management ................................................................................ 10
18.
Environmental management..................................................................... 11
19.
NOT USED .............................................................................................. 13
20.
NOT USED .............................................................................................. 14
21.
NOT USED .............................................................................................. 14
22.
NOT USED .............................................................................................. 14
23.
Media releases and enquiries................................................................... 14
24.
Registration and licences ......................................................................... 14
Management duties ................................................................................................... 14
25.
Time management ................................................................................... 14
26.
Working days and hours of work .............................................................. 16
27.
Intellectual property .................................................................................. 16
28.
Licences and approvals............................................................................ 17
29.
Care of people, property and the environment ......................................... 17
30.
Notices and instructions in writing ............................................................ 18
Sub-subcontractors, Suppliers and Consultants.................................................... 18
31.
Sub-subcontractor relationships ............................................................... 18
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32.
Engaging Sub-subcontractors .................................................................. 20
33.
Sub-subcontractors' warranties ................................................................ 20
34.
Consultant and Supplier relationships ...................................................... 20
CARRYING OUT THE SUBCONTRACT WORKS .......................................................... 20
Starting ...................................................................................................................... 20
35.
Start-up workshop .................................................................................... 21
36.
Insurance ................................................................................................. 21
37.
Security .................................................................................................... 23
38.
Site access............................................................................................... 25
39.
Engagement of Valuer.............................................................................. 26
The Site ...................................................................................................................... 26
40.
Site information ........................................................................................ 26
41.
Site Conditions ......................................................................................... 27
Design ........................................................................................................................ 30
42.
Ambiguities .............................................................................................. 30
43.
Subcontractor's Documents ..................................................................... 31
44.
Adopting Contractor's Documents ............................................................ 32
45.
Submitting Subcontractor's Documents .................................................... 33
46.
Innovation ................................................................................................ 33
Construction .............................................................................................................. 34
47.
Setting out the Works ............................................................................... 34
48.
Construction ............................................................................................. 35
49.
Testing ..................................................................................................... 35
50.
Defects ..................................................................................................... 36
51.
Acceptance with Defects not made good.................................................. 37
Changes to work ....................................................................................................... 37
52.
Variations ................................................................................................. 37
53.
Changes in Statutory Requirements ......................................................... 40
Changes to time ........................................................................................................ 40
54.
Extensions of time .................................................................................... 40
55.
Delay costs .............................................................................................. 41
56.
Acceleration ............................................................................................. 43
57.
Contractor's suspension ........................................................................... 43
58.
Subcontractor's suspension ..................................................................... 44
Payment ..................................................................................................................... 44
59.
60.
61.
62.
63.
64.
65.
66.
The Subcontract Price .............................................................................. 44
Entitlements ............................................................................................. 45
Prepayment .............................................................................................. 46
Payment Claims ....................................................................................... 47
Payments ................................................................................................. 50
Completion Amount .................................................................................. 51
Final payment .......................................................................................... 51
Interest on late payments ......................................................................... 52
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67.
Set-off ...................................................................................................... 53
Completion ................................................................................................................ 53
68.
Early use .................................................................................................. 53
69.
Completion ............................................................................................... 54
70.
Close-out workshop ................................................................................. 54
71.
After Completion ...................................................................................... 54
CLAIM AND ISSUE RESOLUTION ................................................................................. 54
Claim resolution ........................................................................................................ 55
72.
Subcontractor's Claims ............................................................................ 55
Issue resolution......................................................................................................... 56
73.
Notification of Issue .................................................................................. 56
74.
Resolution by senior executives ............................................................... 57
75.
Expert Determination................................................................................ 57
76.
Parties to perform the Subcontract ........................................................... 59
TERMINATION ................................................................................................................ 59
77.
Termination for Subcontractor's Default or Insolvency .............................. 59
78.
Termination for Contractor's convenience ................................................ 60
79.
Termination for Contractor's default ......................................................... 61
80.
Termination of Contract ............................................................................ 61
81.
Termination notices .................................................................................. 62
MEANINGS ..................................................................................................................... 62
82.
Interpretation ............................................................................................ 62
83.
Definitions ................................................................................................ 62
Meanings of words and phrases .............................................................................. 62
SUBCONTRACT INFORMATION ..................................................................................... 2
Page 1 of 69
SUBCONTRACT FRAMEWORK
This section deals with the purpose and structure of the Subcontract. It allocates responsibilities
and sets up the procedures for making the Subcontract work. Underlying it are the basic principles
of this Subcontract: co-operative contracting, enhanced communication, clear definition of roles,
responsibility for outcomes, and focus on enabling best practice.
Roles and relationships
Although the parties have different responsibilities, co-operation is a key element of the
Subcontract.
1.
General responsibilities
1.1
1.2
1.3
2.
The Subcontractor must:
1.1.1
construct the Subcontract Works including any required Design to
Completion in accordance with the Subcontract;
1.1.2
perform the Subcontractor's Design obligations as specified in
Subcontract Information item 37A; and
1.1.3
perform and observe all its other obligations under the
Subcontract.
The Contractor must:
1.2.1
pay the Subcontractor the Subcontract Price for its performance,
in accordance with and subject to the Subcontract. The basis of
payment may be lump sum, Schedule of Rates or a combination
of these as referred to in clause 59 and specified in Subcontract
Information item 43; and
1.2.2
perform and observe all its other obligations under the
Subcontract.
The Contractor may give instructions to the Subcontractor concerning the
Subcontract Works and anything connected with the Subcontract Works,
and the Subcontractor must comply at its own cost unless an entitlement to
payment is specified under clause 60.1.
Authorised persons
2.1
The Subcontractor must ensure that at all times there is a person appointed
to act with its full authority in all matters relating to the Subcontract as the
Subcontractor's Authorised Person and must keep the Contractor informed
in writing of the name of that person, and of any change. If the Contractor
reasonably objects to the person appointed from time to time, the
Subcontractor must replace that person.
2.2
The Contractor must ensure that there is a person appointed to act on
behalf of the Contractor in relation to the Subcontract as the Contractor's
Authorised Person. The Contractor must keep the Subcontractor informed
in writing of the name of that person and of any change. The person does
not act as independent certifier, assessor or valuer. The person acts only as
agent of the Contractor.
Page 2 of 69
2.3
3.
Co-operation
3.1
4.
6.
The parties must do all they reasonably can to co-operate in all matters
relating to the Subcontract, but their rights and responsibilities under the
Subcontract (or otherwise) remain unchanged unless the parties agree in
writing to change them.
Duty not to hinder performance
4.1
5.
The Contractor will advise the Subcontractor in writing if the Contractor's
Authorised Person delegates any of its powers to others.
Each party must do all it reasonably can to avoid hindering the performance
of the other under the Subcontract.
Early warning
5.1
Each party must do all it reasonably can to promptly inform the other of
anything of which it becomes aware which is likely to affect the time for
Completion, cost or quality of the Subcontract Works, and the parties must
then investigate how to avoid or minimise any adverse effect on the
Subcontract Works and Scheduled Progress.
5.2
Clause 5.1 does not change the rights and responsibilities of either party
under the Subcontract, unless they agree in writing to change them.
5.3
Neither party may disclose in any Issue resolution proceedings (including
Expert Determination and litigation) anything discussed or provided under
clause 5.1.
Evaluation and monitoring
As the project proceeds, regular meetings (usually monthly) allow the parties to evaluate
performance and identify priorities for improvement. These meetings allow others
concerned with the Works to participate, where appropriate.
6.1
If required by the Contractor, the Subcontractor must meet regularly with
those concerned with the Contract, at the times specified by the Contractor,
to evaluate and monitor performance of the Subcontract and project using
the Performance Evaluation and Performance Evaluation Record forms in
Attachments 2 and 3. The forms in Attachments 2 and 3 may be amended
by agreement between the parties.
These forms list appropriate topics for performance assessment and allow progress
to be monitored as the project proceeds. The parties may amend the forms to suit
the specific attributes of the Subcontract and project. The forms provide a structure
for evaluation and for discussion, and focus on achievable improvements in project
communication and management.
6.2
Participation in meetings does not give the participants any additional rights
or responsibilities.
6.3
Attachments 1, 2 and 3 are not part of the Subcontract. Nothing concerning
or in connection with them changes either party's rights and responsibilities,
or can be relied on or used by one party against another in any
proceedings.
6.4
Each party and any others who participate in the evaluation and monitoring
meetings must meet their own costs for attendance at the meetings, and the
parties to the Contract will share equally the other costs.
Page 3 of 69
THE SUBCONTRACT
7.
The Subcontract
The Subcontract is formed by the signing of the Subcontract Agreement by the parties, or
by the Contractor sending a letter awarding the Subcontract to the Subcontractor (Letter of
Award).
7.1
The Subcontract is made up solely of the Subcontract Documents, which
supersede all understandings, representations and communications
between the parties related to the subject matter of the Subcontract made
before the Date of Subcontract. The Subcontract Documents are:
7.1.1
these General Conditions of Subcontract;
7.1.2
the Subcontract Information;
7.1.3
annexed Schedules;
7.1.4
Contractor's Documents (at the Date of Subcontract); and
7.1.5
any documents listed in Subcontract Information item 17 as
Reference Subcontract Documents.
The Letter of Award (or the Subcontract Agreement, if used instead) is a Reference
Subcontract Document.
8.
7.2
The Subcontract Documents must be read as a whole, and anything in one
such document must be read as included in all other such documents,
unless the context requires otherwise.
7.3
The terms of the Subcontract cannot be amended or waived unless both
parties agree in writing.
7.4
The Contractor must give the Subcontractor the number of copies of the
Contractor's Documents in Subcontract Information item 18
Assignment
8.1
9.
Governing law of the Subcontract
9.1
10.
The Subcontractor must not assign a right or benefit under the Subcontract
without first obtaining the Contractor's consent in writing.
The Subcontract is governed by the laws of South
Australia, and the parties submit to the non-exclusive jurisdiction of the
courts of South Australia.
Scope of the Subcontract Works, Temporary Work and work methods
The Subcontract Works
10.1
The scope of the Subcontract Works is described in brief in Subcontract
Information item 3 and more specifically in the Contractor's Documents and
other Subcontract Documents (as applicable), and includes:
10.1.1
all the work specifically referred to in or otherwise contemplated by
the Subcontract;
Page 4 of 69
10.2
10.3
10.1.2
all items not specifically referred to or described in the Subcontract
which nonetheless are required to complete the Subcontract
Works and achieve the effective and efficient use and operation of
the Subcontract Works;
10.1.3
all items referred to in one or more of the Subcontract Documents
or otherwise necessary for the Subcontract Works to be fit for the
purposes required by the Subcontract but omitted from other
Subcontract Documents. Those omitted items are included in the
scope of the Subcontract Works, unless the context requires
otherwise; and
10.1.4
all items of work reasonably inferred from the Subcontract
Documents as necessary to properly execute and complete the
Subcontract Works.
The Subcontractor acknowledges that:
10.2.1
it is both experienced and expert in work of the type and scale of
the Subcontract Works; and
10.2.2
it has made full allowance in the Subcontract Price for the matters
referred to in clause 10.1.
The Subcontractor acknowledges that Variations instructed by the
Contractor will cause the scope of the Subcontract Works to change.
Temporary Work
10.4
The Subcontractor must carry out and be responsible for all Temporary
Work, and carry out, perform, provide and do everything necessary
including all ancillary or other work for or in connection with the Design (to
the extent applicable) and construction of the Subcontract Works, subject to
the following:
10.4.1
The Contractor may instruct the Subcontractor at any time to use a
particular method or type of Temporary Work and the
Subcontractor must comply with the Contractor's instruction.
10.4.2
Subject to clause 10.4.3, if the Contractor's instruction directly
causes the Subcontractor to incur necessarily and unavoidably any
extra costs when compared with the costs the Subcontractor would
have incurred had the Contractor not given the instruction, the
Subcontractor may be entitled to those extra costs and an
extension of time under clause 54 (if applicable).
10.4.3
If the need for the instruction in clause 10.4.1 arises from the
Subcontractor's own act or omission, then the Subcontractor is not
entitled to those extra costs or extensions of time.
Work methods
10.5
The Subcontractor is free to use any work method, subject to the following:
10.5.1
The Subcontractor is solely responsible for all work methods,
whether specified in the Subcontract or not.
10.5.2
The Subcontractor warrants that it has undertaken all necessary
investigation and inquiry to satisfy itself that all work methods
Page 5 of 69
specified in the Subcontract or which the Subcontractor otherwise
proposes to use are appropriate for the purposes of the
Subcontract.
10.5.3
If a particular work method is specified in the Subcontract, the
Subcontractor must use it.
10.5.4
If a particular work method is specified in the Subcontract but it is
not possible to use that method, the Subcontractor must use
another method without entitlement to extra cost or an extension of
time.
10.5.5
If a particular work method for which the Subcontractor is
responsible is impractical and the Subcontractor, with or without
the instruction of the Contractor, uses another work method by
necessity to complete the Subcontract Works, the Subcontractor is
not entitled to an extension of time or extra cost.
10.5.6
The Contractor may instruct the Subcontractor at any time to use a
particular work method.
10.5.7
Subject to clauses 10.5.4 and 10.5.5, if the Contractor's instruction
directly causes the Subcontractor to incur necessarily and
unavoidably any extra costs when compared with the costs the
Subcontractor would have incurred had the Contractor not given
the instruction, the Subcontractor is entitled to those extra costs (if
it demonstrates to the reasonable satisfaction of the Contractor
that it has incurred such extra costs) and may be entitled to an
extension of time under clause 54 (if applicable).
Statutory Requirements and guidelines
11.
Statutory Requirements
11.1
The Subcontractor is responsible for:
11.1.1
compliance with all Statutory Requirements, subject to clause 53,
except if (because of the nature of the requirement) only the
Contractor or others can comply; and
11.1.2
the giving of all notices necessary to comply with Statutory
Requirements and the payment of all necessary fees, charges and
other imposts, other than those notices and imposts to be given or
paid by the Contractor under the Subcontract or the Principal (or
given or paid by the Contractor or the Principal prior to the Date of
Subcontract).
Clause 53 deals with changes in Statutory Requirements
11.2
Upon request by the Contractor and as a condition of achieving Completion,
the Subcontractor must give to the Contractor all original documents issued
by authorities or providers of services, including those evidencing approvals,
authorisations and consents in connection with the Subcontract Works and
the Site.
Page 6 of 69
12.
Goods and Services Tax
The Subcontract Price and any associated amount is Goods and Services Tax inclusive.
12.1
In this clause 12 the expressions "adjustment note", "consideration", "Goods
and Services Tax", "GST", "input tax credit", "supply", "tax invoice",
"recipient", "Recipient Created Tax Invoice" ("RCTI") and "taxable supply"
have the meanings given in the A New Tax System (Goods and Services
Tax) Act 1999 (Cwlth) and the expression "net dollar margin" has the
meaning given in the guidelines issued by the Australian Competition and
Consumer Commission.
Calculation of GST
12.2
Unless otherwise expressly stated in the Subcontract, all prices, rates or
other sums payable or for which payment is to be made under or in
accordance with the Subcontract, include an amount for GST.
12.3
No additional amount on account of GST is payable by a party who receives
a taxable supply under or in connection with the Subcontract. All amounts
payable reflect the GST-inclusive market value of the taxable supply.
12.4
Any contract entered into by a party to the Subcontract with a third party
which involves supplies being made, the cost of which will affect the cost of
any supplies made under or in connection with the Subcontract, must
include a clause including equivalent terms to clauses 12.2, 12.3 and 12.4.
GST invoices
12.5
The Contractor will issue a tax invoice for each taxable supply it makes to
the Subcontractor without request.
12.6
Each party must immediately notify the other party if it ceases to be
registered for GST.
12.7
Each party acknowledges and warrants that at the time of entering into the
Subcontract, it is registered for the GST.
Reimbursable expenses
12.8
If the Subcontract requires a party to pay for, reimburse or contribute to any
expense, loss or outgoing ("reimbursable expense") suffered or incurred by
the other party, the amount required to be paid, reimbursed or contributed
by the first party must be the sum of:
12.8.1
the amount of the reimbursable expense net of input tax credits (if
any) to which the other party (or its representative member) is
entitled in respect of the reimbursable expense; and
12.8.2
to the extent that the other party's recovery from the first party is
consideration for a taxable supply to the first party, any GST
payable in respect of that supply.
Contractor supplies
12.9
If the Contractor makes any supply to the Subcontractor as a consequence
of any matter arising under or in connection with this Subcontract, the
Subcontractor must pay to the Contractor on demand an amount equal to
any GST payable in relation to that supply.
Pay As You Go
12.10 If the Subcontractor does not quote its ABN in its tender (to be provided in
Subcontract Information item 8) or on its Payment Claims or invoices, or the
Page 7 of 69
Subcontractor does not otherwise advise the Contractor of its ABN relating
to the service, the Contractor will withhold tax from payments in accordance
with the A New Tax System (Pay As You Go) Act 1999 (Cwlth).
Fines and penalties
12.11 Nothing in this clause requires the Contractor to pay any amount on account
of a fine, penalty, interest or other amount for which the Subcontractor is
liable as a consequence of failure by the Subcontractor to comply with
legislation which governs GST.
12A.
South Australian policy matters
12A.1 Nothing in the Subcontract derogates from the powers of the AuditorGeneral under the Public Finance and Audit Act 1987 (SA).
12A.2 The Subcontractor must, if it is a relevant employer within the meaning of
the Equal Opportunity for Women in the Workplace Act 1999 (Cth) comply
with its obligations under that Act, and use its best endeavours to ensure
that any subcontractor who is a relevant employer complies with its
obligations under that Act.
12A.3 The Subcontractor must not accept the services of any person who, either
directly or through an independent contractor or third party, within the last
three years, has received a separation package from the South Australian
Government under its various schemes where the service may breach the
conditions under which the separation package was paid to the former
public sector employee.
12B. Compliance with Building Code 2013
12B.1
For the purpose of this clause 12B, the following definitions shall apply:
‘the Building Code’ means the Building Code 2013. The Building Code can
be downloaded from http://www.fwbc.gov.au/building-code/;
‘the Supporting Guidelines’ means the Supporting Guidelines for the
Building Code 2013;
‘the Organisation’ means the State of South Australia to which the
Commonwealth has directed the Program Expenditure;
‘the Program Expenditure’ mean the funding provided by the
Commonwealth for the Project;
‘the Project Parties’ means all contractors, subcontractors, consultants, and
employees who perform on Site work in relation to the Project;
‘the Project’ means the works to be executed through the Program
Expenditure.
12B.2
The Contractor must comply with the Building Code.
12B.3
Compliance with the Building Code shall not relieve the Contractor from
responsibility to perform the Contract, or from liability for any defect in the
works arising from compliance with the Building Code.
12B.4
Where a change in the Contract is proposed and that change would affect
compliance with the Building Code, the Contractor must submit a report to
the Commonwealth specifying the extent to which the Contractor’s
compliance with the Building Code will be affected.
12B.5
The Contractor must maintain adequate records of the compliance with the
Page 8 of 69
Building Code by:
12B.5.1
the Contractor;
12B.5.2
its subcontractors;
12B.5.3
consultants; and
12B.5.4
its Related Entities (refer Section 8 of the Building Code).
12B.6
If the Contractor does not comply with the requirements of the Building
Code in the performance of this Contract such that a sanction is applied by
the Minister for Employment and Workplace Relations, the Code Monitoring
Group or the Commonwealth, without prejudice to any rights that would
otherwise accrue, those parties shall be entitled to record that noncompliance and take it, or require it to be taken, into account in the
evaluation of any future tenders that may be lodged by the Contractor or a
related entity in respect of work funded by the Commonwealth or its
agencies.
12B.7
The Contractor must not appoint a subcontractor or consultant in relation to
the Project where:
12B.8
12B.7.1
the appointment would breach a sanction imposed by the
Minister for Employment and Workplace Relations; or
12B.7.2
the subcontractor or consultant has had an adverse Court or
Tribunal decision (not including decisions under appeal) for a
breach of workplace relations law, work health and safety law,
or workers’ compensation law and the tenderer has not fully
complied, or is not fully complying, with the order.
The Contractor agrees to require that it and its subcontractors or
consultants and its related entities provide the Commonwealth or any
person authorised by the Commonwealth, including a person occupying a
position in the Fair Work Building Industry Inspectorate, with access to:
12B.8.1
inspect any work, material, machinery, appliance, article or
facility;
12B.8.2
inspect and copy any record relevant to the Project the subject
of this Contract; and
12B.8.3
interview any person
as is necessary to demonstrate its compliance with the Building Code.
12B.9
The Contractor agrees that the Contractor and its related entities will agree
to a request from the Commonwealth or any person authorised by the
Commonwealth, including a person occupying a position in the Fair Work
Building Industry Inspectorate, to produce a specified document within a
specified period, in person, by fax or by post.
12B.10 The Contractor must ensure that all subcontracts impose obligations on
subcontractors equivalent to the obligations under this clause 12B.
12C.
Australian Government Agreement
12C.1
For the purpose of this clause 12C, the following definitions shall apply:
‘Agreement’ means the agreement between the Commonwealth of
Australia and State of South Australia that will be entered for the provision
of funds for the Project;
Page 9 of 69
‘OHS Accreditation Scheme’ means the Australian Government Building
and Construction OHS accreditation scheme established by the Fair Work
(Building Industry) Act 2012;
‘Project’ means the project to construct the project name.
12C.2
The Subcontractor acknowledges that the State will enter into an
Agreement.
12C.3
The Subcontractor agrees to cooperate in all respects during the life of the
Subcontract to enable the State to perform its obligations under the
Agreement and without limitation, the Subcontractor will:
12C.3.1 preserve the confidentiality of the Commonwealth Funding
Agreement;
12C.3.2 not do anything or permit anything to be done (whether by act or
omission) which may cause or contribute towards a breach of
the Agreement by the State or otherwise prejudice the
Agreement;
12C.3.3 provide any information requested by the Commonwealth
pursuant to the Agreement.
12C.4
In the event that the Commonwealth either:
12C.4.1 terminates the Agreement; or
12C.4.2 otherwise withdraws funding for the Project,
then the Contractor has the right to terminate this Subcontract with no
liability to the Contractor, except that the Contractor will pay the
Subcontractor for services rendered prior to such termination.
12D.
NOT USED
13.
Compliance with codes
The South Australian Government has established codes of practice, which address
principles and standards of behaviour in the construction industry.
13.1
14.
Subject to the express provisions of the Subcontract, the parties must
comply with the relevant provisions of the codes of practice listed in
Subcontract Information item 14.
Collusive arrangements
14.1
The Subcontractor warrants and represents to the Contractor and agrees
with the Contractor that it is a fundamental condition of the Subcontract that:
14.1.1
14.1.2
the Subcontractor has no knowledge of the tender price of any
other tenderer for the Subcontract;
except as disclosed in its tender, and by agreement in writing
with the Contractor, it has not entered into any contract,
arrangement or understanding to pay or allow any money directly
or indirectly to a trade or industry association or to or on behalf of
Page 10 of 69
any other tenderer in relation to its tender or this Subcontract, nor
paid or allowed any money on that account, nor will it pay or allow
any money on that account; and
14.1.3
15.
if the Subcontractor pays to a trade association, industry
association or another tenderer or pays to anyone on behalf of a
trade association, industry association or another tenderer any
money in breach of clause 14.1.2, the Subcontractor must
immediately give the Contractor written notice of such an event
and such money is deemed to be held on trust for and becomes
immediately payable to the Contractor. The Subcontractor must
use its best endeavours to recover the money and pay it to the
Contractor. If it fails to do so within the time specified in a notice by
the Contractor to the Subcontractor or otherwise (in the absence of
a notice) within a reasonable time, the Contractor will be entitled to
withhold, deduct or set off from any payment due to the
Subcontractor on any account an equivalent sum or make a
demand against the Undertakings provided under clause 37.
Work health and safety management
The Subcontractor must be committed to creating a safe working environment and to
continuous improvement in work health and safety.
16.
15.1
The Subcontractor is responsible for and must comply with the requirements
of the Subcontract for work health and safety, subject to the express
provisions of the Work Health and Safety Act 2012 (SA) and the Work Health
and Safety Regulations 2012 (SA).
15.2
Where applicable, as indicated in Subcontract Information item 16, at least
14 days before starting Design (if applicable) and construction, the
Subcontractor must document, submit and implement a work health and
safety management plan which complies with the Work Health and Safety
Regulations 2012 (SA).
15.3
The Subcontractor must systematically manage its work health and safety
management processes in accordance with any systems, plans, standards
and codes specified in the Subcontract.
15.4
The Subcontractor must demonstrate to the Contractor, whenever
requested, that it has met and is meeting at all times its obligations under
clauses 15.1 to 15.3.
Industrial relations management
The Subcontractor must manage industrial relations at the enterprise level, and to integrate
industrial relations management activities into subcontract planning and management,
subject to the Contractor's overall control of industrial relations management on the Site.
The Subcontractor must manage all aspects of industrial relations in
connection with its Sub-subcontractors, Suppliers and Consultants, and keep
the Contractor informed of industrial relations issues which affect or are likely
to affect the carrying out of the Subcontract Works.
17.
Quality management
The Subcontractor must and it must also ensure that its Sub-subcontractors, Suppliers and
Consultants systematically plan and manage their work to achieve specified quality
Page 11 of 69
outcomes, reduce the occurrence and costs of error and waste and to achieve continuous
improvement in the quality of the product or service provided.
17.1
The Subcontractor must systematically manage its processes in accordance
with any quality management systems, plans, standards and codes
specified in the Subcontract.
17.2
The Subcontractor must:
17.3
18.
17.2.1
submit documentation required by the Subcontract by the time or
times specified in the Subcontract;
17.2.2
review and update the Subcontractor's quality management
procedures and documentation so they remain adequate at all
times to manage and ensure the quality of the Subcontract Works
complies with the requirements of the Subcontract;
17.2.3
control non-conforming services and/or products and undertake
corrective and preventative action as and when necessary;
17.2.4
establish, maintain and keep records of all activities related to the
management of quality; and
17.2.5
provide sufficient access to the workplace, and to information,
records and other relgevant documentation, resources (including
personnel), and all other things necessary to allow the Contractor
to carry out reviews, surveillance and audit of the Subcontractor's
procedures and conformance with the contractual quality
management requirements.
The Subcontractor must demonstrate to the Contractor, whenever
requested, that it has met and is meeting at all times its obligations under
clauses 17.1 to 17.2.
Environmental management
The Contractor requires the Subcontractor to implement a systematic approach to the
management of environmental impacts of the Subcontract.
18A
18.1
Environmental management requirements specified in the Subcontract may
be in addition to, but are not in substitution for, any environmental
management obligations of the Subcontractor under the laws of South
Australia or the Commonwealth.
18.2
The Subcontractor must systematically manage its environmental
management processes in accordance with any systems, plans, standards
and codes specified in the Subcontract.
18.3
The Subcontractor must demonstrate to the Contractor, whenever
requested, that it has met and is meeting at all times its obligations under
clauses 18.1 and 18.2.
Workforce Participation and Skills Development
The Contractor requires the Subcontractor to implement a systematic approach to meeting
objectives for increased employment of Apprentices and Trainees, Cadets, Aboriginal
people and Local People with Barriers to Employment.
18A.1 This clause 18A applies if it is stated to apply in Subcontract Information
item 16A.
Page 12 of 69
18A.2 The Subcontractor acknowledges that:
18A.2.1 an objective of the Contract is to increase the employment and
training of Apprentices and Trainees, Cadets, Aboriginal people
and Local Persons with Barriers to Employment (the “Target
Group”) and to Upskill people engaged directly in connection with
the performance of the Contract; and
18A.2.2 the Contractor has obligations to the Principal in relation to the
objective set out in Clause 18A.2.1, and is relying on the
Subcontractor to satisfy some or all of the obligations.
18A.3 The Contractor must provide to the Subcontractor a copy of its Workforce
Participation and Skills Development Plan or Workforce Participation and
Skills Development Strategy (as the case may be) and any amendments to
the plan or strategy which it has submitted to the Principal under the terms
of the Contract within 10 days of its submission to the Principal.
18A.4 The Subcontractor must support, implement and comply with the
Contractor’s Workforce Participation and Skills Development Plan or
Workforce Participation and Skills Development Strategy (as the case may
be), as amended to the extent it indicates that obligations will be
undertaken by the Subcontractor.
18A.5 The Subcontractor must:
18A.5.1 keep records of compliance with this clause including (without
limitation) records of the following information:
A.
the number of hours of work performed by each person on
the Site;
B.
the total labour hours for all workers; and
C.
details of the Upskilling provided to people engaged
directly in connection with the performance of the
Subcontract, including the hours undertaken, the name
and date of the course and the name of the training
organisation;
18A.5.2 provide the Contractor with such other information and
assistance as the Contractor may require to:
A.
satisfy its reporting obligations under the Contract in
connection with the obligations referred to in Clause
18A.2.2; and
B.
in connection with the Principal carrying out an audit of the
Contractor’s compliance with the Contract.
18A.6 The Subcontractor must not contravene the Privacy Act 1988 (Cth). This
may require the Subcontractor to obtain a person’s consent prior to
disclosing that person’s personal information in connection with this clause.
18A.7 For the purpose of this clause:
“Aboriginal person” means a person who identifies as being Aboriginal and/or is
considered by members of his or her community as being Aboriginal. This definition
includes Torres Strait Islander people;
Page 13 of 69
“Apprentice/Trainee” means a person (who may be either an apprentice or a
trainee) undertaking training in a trade or declared vocation under a training
contract as provided for in the Training and Skills Development Act 2008 (SA)
whether on a full-time or part-time basis;
“Cadet” means a person undertaking tertiary or post-graduate study linked to paid
employment with the Contractor (or its subcontractor), provided that both the
person’s employment and study are linked to the building and civil construction
industry (for example, employment and training in civil engineering, structural
engineering, mechanic engineering, architecture, surveying or construction
management);
“Local Person With Barriers to Employment” means any person residing in South
Australia who is unemployed at the time of commencing employment with the
Contractor (or its subcontractor). A Local Person with Barriers to Employment
includes a person who is:
1.
registered with Centrelink or a Job Services Australia provider;
2.
registered with the Disability Employment Network;
3.
a skilled migrant job seeker holding a General Skilled Migrant visa;
4.
a participant in a South Australia Works program (being the initiative of the
South Australian Government which links people with skills and jobs
through a range of learning, training and work programs).
A person maintains his or her status as a Local Person with Barriers to
Employment for 12 months from the commencement of employment with the
Contractor or subcontractor (as the case may be);
“Target Group” has the meaning given to it in clause 18A.2.1;
“Upskilling” means training where:
1.
2.
the training is:

on the list of courses eligible for CITB funding support;

provided by an organisation approved by the CITB (a list of eligible
courses and approved providers is available from the CITB or by
visiting www.dfeest.sa.gov.au/15percent); and

is relevant to the employment and skills required for the performance
of the Contract; or
the training is otherwise approved by CITB as eligible to be included in the
Upskilling Component.
Notwithstanding this definition, Upskilling does not include any off-Site training
undertaken by Cadets;
“Workforce and Skills Development Plan” means the plan so called and which, if
required by the Contract, has been submitted by the Contractor to the Principal in
accordance with the terms of the Contract; and
“Workforce and Skills Development Strategy” means the strategy so called and
which, if required by the Contract, has been submitted by the Contractor to the
Principal in accordance with the terms of the Contract.
18B
NOT USED
19.
NOT USED
Page 14 of 69
20.
NOT USED
21.
NOT USED
22.
NOT USED
23.
Media releases and enquiries
23.1
24.
The Subcontractor must obtain the Contractor's prior written consent to:
23.1.1
any press release or advertisement it wishes to make or place
concerning the Subcontract, the Principal, the Contractor or the
Subcontract Works; or
23.1.2
the release for publication in any media of any information,
publication, document or article concerning the Subcontract, the
Principal, the Contractor or the Subcontract Works.
23.2
The Subcontractor must refer any media enquiries concerning the
Subcontract, the Principal, the Contractor or the Subcontract Works to the
Contractor, for the Contractor's prior written consent to any response, which
consent may be given or withheld, in the Contractor's absolute discretion.
23.3
The Subcontractor must ensure that all Consultants, Sub-subcontractors
and Suppliers engaged by the Subcontractor for the performance of the
Subcontract, comply with the requirements of this clause 23 and obtain the
Contractor's prior written consent (through the Subcontractor) before
responding to enquiries or publishing anything of the type referred to in
clause 23.
Registration and licences
24.1
All vehicles and plant used in performing work in connection with the
Subcontract must be properly registered by the Subcontractor, if required by
law to be registered.
24.2
The Subcontractor must ensure that all drivers who operate vehicles or
plant in performing work in connection with the Subcontract are properly and
appropriately licensed as required by law to operate those vehicles or plant.
24.3
Whenever requested by the Contractor, the Subcontractor must provide
promptly, documentary evidence of compliance with clauses 24.1 and 24.2.
Management duties
25.
Time management
The Subcontractor must actively manage progress, anticipating and responding to events
to stay on schedule.
25.1
The Subcontractor must commence Design (if applicable) and construction
of the Subcontract Works on Site in accordance with the Subcontract
Program (or the contractual program as referred to in clause 25.6, as
applicable).
25.2
The Subcontractor must carry out Design (to the extent applicable) and
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construction of the Subcontract Works in accordance with Scheduled
Progress.
25.3
Whenever requested, the Subcontractor must demonstrate to the Contractor
that it is achieving Scheduled Progress.
25.4
If the Subcontractor is not achieving Scheduled Progress, the Contractor
may instruct the Subcontractor to take all reasonable steps to achieve
Scheduled Progress, at the Subcontractor's cost.
25.5
The parties acknowledge that an instruction under clause 25.4 is not an
Acceleration Notice.
25.6
The Subcontractor must submit to the Contractor a program which complies
with clause 25.9 within 14 days of the Date of Subcontract. Until the
Subcontractor provides this program complying with clause 25.9, the
program submitted by the Subcontractor with its tender shall be the
contractual program, if the Contractor so advises the Subcontractor in
writing.
25.7
The Contractor need not respond to the Subcontractor concerning the
program submitted. If the Contractor raises no objection and the program
submitted by the Subcontractor under this clause 25 complies with clause
25.9, it becomes the Subcontract Program. If the program does not comply
with clause 25.9, the Subcontractor must promptly and in any event within
14 days of being notified by the Contractor of the non-compliance, submit to
the Contractor a further program complying with the requirements for the
Subcontract Program in clause 25.9.
25.8
The Subcontractor must update and resubmit the Subcontract Program
when directed by the Contractor acting reasonably, taking into account
actual progress, any changed circumstances and the effects of delays and
approved extensions of time.
25.9
The Subcontract Program must comply with the following requirements:
25.9.1
show the dates of, or, in the case of future activities and events,
the dates for commencement and completion of Design and
construction activities, other significant events, Subcontract
Milestones and the Subcontract Works and also include
Contractual Completion Dates;
25.9.2
reflect Scheduled Progress and be consistent with all constraints
on access, performance and co-ordination;
25.9.3
show the logical relationship between activities and events shown
in the program, identify time leads and lags, resource and other
constraints and the sequence of activities which constitute the
critical path or critical paths;
25.9.4
show the dates when the Subcontractor will require information,
documents, materials or instructions from the Contractor and the
dates when the Subcontractor will provide information or
documents to the Contractor. These dates are to be consistent
with dates which the Contractor could reasonably have anticipated
at the Date of Subcontract that this information, documents,
materials and instructions would be required and provided; and
25.9.5
be in such form and include such detail as the Contractor
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reasonably requires and be accurate, comprehensive and
complete in all respects.
When requested by the Contractor, the Subcontractor must provide the
Subcontract Program in electronic form to the Contractor. All of the
requirements of clauses 25.9.1 to 25.9.5 must be accessible and clearly
shown in the electronic form of the Subcontract Program. The software
used by the Subcontractor must be acceptable to the Contractor.
25.10 The Subcontractor will not be entitled to make a Subcontractor's Claim for
an extension of time under clause 54.3 or otherwise, until the Subcontractor
has submitted to the Contractor a Subcontract Program in conformance
with clause 25.9, notwithstanding the references to the contractual program
in clauses 25.1 & 25.6. The Subcontract Program submitted in respect of a
Subcontractor's Claim for an extension of time must be the Subcontract
Program current (as adjusted under clause 25.8) at the time of the event or
events giving rise to the Subcontractor's Claim.
25.11 All extension of time Subcontractor's Claims must show how the
Subcontractor has been or will be delayed in reaching Completion, by
specific reference to an activity or activities on the then current (as adjusted
under clause 25.8) critical path or paths of the Subcontract Program.
25.12 Provision of the Subcontract Program does not relieve the Subcontractor of
any of its obligations under the Subcontract.
26.
Working days and hours of work
26.1
27.
The Subcontractor must observe Statutory Requirements which regulate
working days and hours of work and any requirements of the Contractor
which regulate working days and hours of work, as specified in Contract
Information Item 39.
Intellectual property
27.1
The Subcontractor assigns or otherwise transfers Intellectual Property
Rights in all Data created specifically for the Subcontract, upon its creation,
to the Principal. The Subcontractor, at its own cost, will do all things
necessary, including execution of all necessary documentation, to vest
ownership of all such Intellectual Property Rights in the Principal.
27.2
The Subcontractor must include provisions in all Sub-subcontracts and
agreements with Consultants to ensure that Intellectual Property Rights in
all Data created specifically for the Subcontract is assigned or otherwise
transferred to the Principal upon its creation. The Subcontractor, Subsubcontractors and Consultants are granted licences to use the Data for the
purposes of the Subcontract.
27.3
For Data provided by or for the Subcontractor, but not created specifically
for the Subcontract, the Subcontractor must obtain irrevocable royalty-free
licences to allow the Principal to use, operate, maintain, modify and
decommission the Subcontract Works.
27.4
Licences referred to in clause 27.3 must apply from the Date of Subcontract
or (if the Data has not then been created or is not then available) from the
date the Data is created or becomes available (as applicable) in perpetuity.
27.5
The Subcontractor is responsible for the timely payment of all royalties and
Page 17 of 69
fees for Intellectual Property Rights in connection with the Subcontract and
the Subcontract Works. The Subcontractor indemnifies the Contractor and
the Principal against any claims (including Subcontractor's Claims), actions,
and loss or damage arising out of any failure to make these payments or
any infringement or alleged infringement of Intellectual Property Rights in
relation to the Data provided by or for the Subcontractor and used under the
Subcontract or required to use, operate, maintain, modify or decommission
the Subcontract Works.
28.
27.6
The Subcontractor must ensure that Data created specifically for the
Subcontract by or for the Subcontractor is only used by the Subcontractor
and Sub-subcontractors, Suppliers and Consultants for the purposes of the
Subcontract.
27.7
The Subcontractor must maintain all Data secret and confidential and
disclose it only to those persons to whom disclosure is reasonably
necessary for the purposes of the Subcontract. This provision does not
relate to Data which is generally available to the public or which is required
to be disclosed by law. This provision survives termination or expiry of the
Subcontract or of the Subcontractor's employment under the Subcontract.
Licences and approvals
28.1
29.
The Subcontractor must obtain at its own cost all licences, authorisations,
approvals and consents necessary to carry out the Subcontract Works in
accordance with the Subcontract.
Care of people, property and the environment
29.1
The Subcontractor is liable for and indemnifies the Contractor against loss
or damage to:
29.1.1
the Subcontract Works, from the date the Subcontractor begins
carrying out the Subcontract Works; and
29.1.2
the Site and anything brought onto the Site for the purposes of the
Subcontract, from the date the Subcontractor is given access to
the Site (or the relevant part of the Site), arising out of carrying out
work for or in connection with the Subcontract,
until and including the Actual Completion Date of the whole of the
Subcontract Works.
29.2
After the Actual Completion Date of the whole of the Subcontract Works,
the Subcontractor remains liable for and indemnifies the Contractor against
loss or damage arising out of performing Variations, making good Defects,
and removing Materials from the Site.
29.3
The Subcontractor is liable for and indemnifies the Contractor against all
claims, actions, and loss or damage and all other liability arising out of
carrying out the Subcontract Works:
29.4
29.3.1
to or in connection with any property (other than property covered
under clause 29A); and
29.3.2
arising out of personal injury or death.
The Subcontractor's liability for and responsibility to indemnify the
Page 18 of 69
Contractor under clauses 29.1, 29.2 and 29.3 is reduced to the extent that
an Excepted Risk contributes to an injury or death or loss or damage to
property.
29.5
29.6
30.
The Subcontractor is responsible for all of the following:
29.5.1
preventing personal injury or death, or loss or damage to the Site,
the Subcontract Works and the Temporary Work;
29.5.2
preventing loss or damage to adjoining and other properties and
the environment arising out of carrying out the Subcontract Works;
29.5.3
the locating and care of existing services;
29.5.4
repairing or making good loss or damage to the Subcontract
Works, the environment and the Site arising out of carrying out the
Subcontract Works; and
29.5.5
bearing the cost of repairing, or making good, loss or damage to
adjoining and other properties and the environment arising out of
carrying out the Subcontract Works.
if urgent action is required to avoid death, injury, loss or damage, and the
Subcontractor does not take the necessary action immediately when the
Contractor requests it, the Contractor may take the action (without relieving
the Subcontractor of its obligations), at the Subcontractor's cost with the
Contractor's costs being recoverable as a deduction from the Subcontract
Price.
Notices and instructions in writing
30.1
Notices must be sent to the relevant persons at the relevant postal or other
addresses specified in Subcontract Information items 4 to 11.
30.2
All notices must be in writing, and all instructions by the Contractor must be
in writing or confirmed in writing as soon as practicable, where given orally
when urgent action is required.
Sub-subcontractors, Suppliers and Consultants
Contractual relationships between the Subcontractor, Sub-subcontractors, Suppliers and
Consultants must be on a similar basis to those between the Contractor and Subcontractor. Clause
34 specifies which clauses also apply to Consultants and Suppliers.
31.
Sub-subcontractor relationships
31.1
The Subcontractor is solely responsible for all Sub-subcontractors and for
their acts and omissions, and for the termination of any Sub-subcontract
and replacement of any Sub-subcontractor.
31.2
The Subcontractor indemnifies the Contractor against all claims (including
Claims), actions, and loss or damage and all other liability arising out of any
acts or omissions of Sub-subcontractors.
31.3
The Contractor must provide to the Subcontractor, before the Subcontractor
begins work, a copy of the following clauses and Subcontract Information
items in the Contract:
Page 19 of 69
31.3.1
clause 62;
31.3.2
clause 66;
31.3.3
clauses 72 to 76; and
31.3.4
Contract Information items 20 to 22 and 50.
31.4
The Subcontractor must make Payment Claims in accordance with clauses
62 and 65, and the Contractor must pay the Subcontractor in accordance
with clauses 63 and 65.
31.5
The Contractor must comply with clauses 37.7 to 37.8.
Requirements for all Sub-subcontracts
31.6
31.7
The Subcontractor must include in each Sub-subcontract (including
agreements with Suppliers) written provisions which bind the Subsubcontractor to all of the following:
31.6.1
those of the Subcontractor's obligations under this Subcontract
which are to be performed by the Sub-subcontractor;
31.6.2
the provisions of the Subcontract applying to termination for
convenience (clause 78); and
31.6.3
instructions of the Contractor issued to the Subcontractor which
necessarily apply to the Sub-subcontractor.
Each Sub-subcontract must require the Subcontractor to pay the Subsubcontractor within 15 Business Days of the Sub-subcontractor claiming
payment in accordance with the Sub-subcontract.
Further Sub-subcontract requirements
Clause 31.8 applies only to Sub-subcontracts worth more than the amount in Subcontract
Information item 21. It applies in addition to clauses 31.6 and 31.7.
31.8
The Subcontractor must include written provisions acceptable to the
Contractor, to the effect of those in this clause 31.8, in each Subsubcontract of value more than the amount in Subcontract Information item
21 (which must be the same as the amount in Contract Information item 21
of the Contract); and the Subcontractor must ensure that each subcontract
entered into by a Sub-subcontractor of more than that value includes written
provisions to the same effect.
31.8.1
Any Sub-subcontract which:
(a)
requires the Sub-subcontractor to provide a cash security to
the Subcontractor; or
(b)
allows the Subcontractor to deduct retention money from any
payment made by it to the Sub-subcontractor,
must allow the Sub-subcontractor to provide an undertaking in a
form equivalent to the relevant Undertaking in Schedule 2 in place
of a cash security or retention money.
31.8.2
The Subcontractor may only withhold amounts from Progress
Payments that may properly be withheld by the Subcontractor
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under the relevant Sub-subcontract or agreement with a Supplier.
32.
34.
Each Sub-subcontract must include provisions equivalent to
clauses 37.6 to 37.8 and 66 of the Subcontract, and must
prescribe a rate of interest the same as the rate prescribed under
clause 66.
31.8.4
Each Sub-subcontract must include provisions equivalent to
clauses 73 to 76 of the Subcontract, except that they are not to
apply if the only remedy sought by the Sub-subcontractor is an
order that the Subcontractor pay to it an amount which is not
disputed to be payable under the Sub-subcontract.
31.8.5
Each Sub-subcontract must require the Subcontractor to provide to
the Sub-Subcontractor, before the Sub-subcontractor starts work,
a copy of clauses 31.8, 66, 73 to 76 of the Subcontract, and notify
the Sub-subcontractor of the rate of interest for late payments.
Engaging Sub-subcontractors
32.1
33.
31.8.3
The Subcontractor must not without prior written approval of the Contractor
subcontract the whole or any part of the Subcontract Works.
Sub-subcontractors' warranties
33.1
For each trade or area of work listed in Subcontract Information item 25, the
Subcontractor must provide to the Contractor, before the Subcontractor
completes its work, a warranty to the Principal in the form of Schedule 1
(Subcontractor's Warranty) to remedy any Defects and to remedy or replace
Design, Materials or workmanship which does not comply with the
Subcontract.
33.2
Clause 33.1 does not affect any of the Subcontractor's other obligations
under the Subcontract.
Consultant and Supplier relationships
34.1
Clauses 31.1 and 31.2 apply to Consultants in the same way they apply to
Sub-subcontractors, unless the context requires otherwise.
34.2
Clauses 31.1, 31.2, 31.3 (excluding clause 31.3.1), 31.4 and 33 apply to
Suppliers in the same way they apply to Sub-subcontractors, unless the
context requires otherwise.
CARRYING OUT THE SUBCONTRACT WORKS
This section deals with design and construction activities. It contains most of the provisions in the
Subcontract conditions that apply to the physical carrying out of the Subcontract Works, and also
covers procedures for payment.
Starting
Page 21 of 69
35.
Start-up workshop
Under the Contract, the Principal convenes the start-up workshop at the beginning of the
Contract. The start-up workshop is held to encourage the parties and others concerned with
the Contract to work co-operatively. See Attachment 1.
36.
35.1
If requested by the Contractor, the Subcontractor must attend a start-up
workshop convened by the Principal.
35.2
Each party and any others who participate in the workshop must meet their
own costs for attendance at the start-up workshop, and the parties to the
Contract will share equally the other costs.
Insurance
Contractor's obligations
36.1
36.2
The Subcontractor acknowledges that, under the Contract, the Contractor
must take out (and pay all premiums for) the following insurance policies
(except to the extent that the Contractor has notified the Subcontractor
within 14 days of the Date of Subcontract that the Principal has effected any
of Works, public liability and marine liability policies of insurance which
include cover for the Contractor, Consultants, Subcontractors and
Suppliers), which (apart from that under clause 36.1.3) must cover the
Subcontractor as an insured:
36.1.1
a Works policy of insurance to cover loss or damage to the Works
(including the Subcontract Works) and the Temporary Work
(excluding the Subcontractor's plant) and including Materials
stored off-Site or in transit, as specified in Subcontract Information
item 26;
36.1.2
a public liability policy of insurance to cover loss or damage to
property or injury or death to persons arising out of or in
connection with carrying out the Subcontract Works, as specified
in Subcontract Information item 27;
36.1.3
(if required in Subcontract Information item 28) a professional
indemnity policy of insurance to cover liability for breach of
professional duty (whether in contract or otherwise) arising out of
any negligence, whether in relation to errors in design,
documentation, supervision or other professional duties of the
Contractor (whether in contract or otherwise), as specified in
Subcontract Information item 28, and extended to include cover for
any breach of all such professional duties carried out on behalf of
the Subcontractor by Sub-subcontractors, Suppliers or
Consultants; and
36.1.4
if any work for or in connection with the Subcontract includes the
use of waterborne craft of 8 or more metres in length, a marine
liability policy of insurance to cover the use of such craft, as
specified in Subcontract Information item 30.
The Contractor must provide copies of the policies of insurance taken out by
the Contractor under clause 36.1, or by the Principal (as applicable) if
requested by the Subcontractor. The Subcontractor may itself take out and
maintain any additional insurances which it considers necessary.
Subcontractor's obligations
Page 22 of 69
36.3
36.4
Before starting work under the Subcontract, the Subcontractor must:
36.3.1
insure for the minimum amount specified in Subcontract
Information item 31, and pay all premiums for all Workers'
Compensation and related liability in accordance with the
requirements of the Workers Rehabilitation and Compensation Act
1986 (SA); or
36.3.2
(if Workers' Compensation cover cannot legally be obtained)
insure under a personal accident policy of insurance to cover
personal accidents and related liability, as specified in Subcontract
Information item 32;
36.3.3
if required in Subcontract Information Item 32A, obtain and
maintain an asbestos liability policy to cover asbestos removal and
decontamination and associated risks; and
36.3.4
insure for any other risks as required under the Subcontract.
The Subcontractor must ensure that every Sub-subcontractor and
Consultant is insured at all times:
36.4.1
for Workers' Compensation and related liability in accordance with
the requirements of the Workers Compensation Act 1987 (NSW);
or
36.4.2
(if Workers Compensation cover cannot legally be obtained) under
a personal accident policy of insurance to cover personal
accidents and related liability, as specified in Subcontract
Information item 32.
Approval
36.5
The Subcontractor must obtain the written approval of the Contractor for all
insurers and for the terms and conditions of the policies it is required to
maintain under the Subcontract.
Policy requirements
36.6
The Subcontractor must ensure that each policy required to be effected and
maintained under the Subcontract, under Sub-subcontracts or agreements
with Consultants is in effect for the relevant period specified in the contract.
36.7
If the Subcontract requires the Subcontractor to take out additional
insurance, all such policies must:
36.7.1
require the insurer to notify the Contractor (other than in relation to
Workers Compensation and personal accident) at the same time
as the insurer receives or gives any notice concerning the policy,
and at least 7 days before any proposed cancellation of a policy;
and
36.7.2
provide that a notice of claim given to the insurer by the Principal,
the Contractor, the Subcontractor, or a Sub-subcontractor,
Supplier or Consultant will be accepted by the insurer as a notice
of claim given by all of the insured.
Proof of Cover
36.8
Before the Subcontractor starts any work for or in connection with the
Page 23 of 69
Subcontract and whenever requested in writing by the Contractor, the
Subcontractor must supply proof that all insurance policies required under
the Subcontract and under Sub-subcontracts are current.
36.9
The Contractor need not make any payment under the Subcontract to the
Subcontractor unless the Subcontractor has complied with and continues to
comply with clause 36.8.
36.10 If the Subcontractor fails to comply with clauses 36.3, 36.4, 36.5 and 36.8,
where possible, the Contractor may effect and maintain that insurance and
pay the necessary premiums. The Contractor may recover from the
Subcontractor the cost of the premiums and the Contractor's reasonable
costs of effecting and maintaining the insurance, as a deduction from the
Subcontract Price.
Excesses
36.11 The Subcontractor must bear all excesses under the policies of insurance
taken out by the Contractor under clause 36.1 which relate to the
Subcontract Works.
Claims
36.12 The Subcontractor must, as soon as practicable, inform the Contractor in
writing of the occurrence of an event that may give rise to a claim under a
policy of insurance effected as required by the Subcontract and must ensure
that the Contractor is kept fully informed of subsequent action and
developments concerning the claim. The Subcontractor must take such
steps as are necessary or appropriate to ensure that a Sub-subcontractor,
Supplier or Consultant (as applicable) will, in respect to an event or claim of
a like nature arising out of or relating to the operations or responsibilities of
the Sub-subcontractor, Supplier or Consultant (as applicable), take in
relation to the Contractor similar action to that which the Subcontractor is
required to take under this clause 36.12.
36.13 If there is a claim for significant damage or destruction under the Works
policy of insurance (as determined by the Principal, acting reasonably):
36.13.1 all settlement amounts must be paid by the insurer directly to the
Principal;
36.13.2 the Contractor may decide to have the Subcontract Works
reinstated, or may decide not to proceed with the Subcontract
Works, as instructed by the Principal under the Contract, without
creating any default by the Contractor under the Subcontract; and
36.13.3 the Subcontractor must reinstate the Subcontract Works if
instructed to by the Contractor and except as otherwise provided in
the Subcontract may only make a Subcontractor's Claim for
payment for reinstatement of the Subcontract Works up to the
relevant amount of any insurance settlement.
No limitation
36.14 The requirements for insurance to be effected and maintained do not affect
or limit the Subcontractor's liabilities or other obligations under the
Subcontract.
37.
Security
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The Subcontractor is required to provide security to the Contractor in the form of cash
security, retention money or Undertakings to pay on demand, provided by financial
institutions on the Subcontractor's behalf.
Provision of Security
37.1
Within 14 days after the Date of Subcontract the Subcontractor must give
the Contractor the Completion Undertaking and the Post-Completion
Undertaking for the amounts calculated as specified in Contract Information
items 33 and 34, or equivalent cash security. The Undertakings must be in
the form specified in Schedule 2 (Undertaking).
Otherwise, the Contractor is entitled to deduct equivalent amounts in
retention money at the time of making Progress Payments.
37.2
All Undertakings must be provided by a bank, building society, credit union
or insurance company acceptable to the Contractor.
Return of Security
37.3
Unless the Contractor has made or intends to then make a demand against
any Undertaking, the Contractor must return Undertakings to the
Subcontractor as follows:
37.3.1
the Completion Undertaking within 14 days after the Actual
Completion Date of the whole of the Subcontract Works; and
37.3.2
the Post-Completion Undertaking at the end of the period in
Contract Information item 35 (or 12 months if no period is specified
there) after the Actual Completion Date of the whole of the
Subcontract Works provided all Defects then known have been
remedied and otherwise when all Defects then known are
remedied.
37.4
When Completion of a Subcontract Milestone is achieved, the Contractor
may (in its absolute discretion) agree to a proportionate reduction in the
level of security held, based on the proportion of the Subcontract Works in
the Subcontract Milestone.
37.5
The Subcontractor must not prevent the Contractor making any demand
against the Undertakings (or the equivalent cash security or retention
money), or prevent the provider of an Undertaking complying with the
Undertaking or any demand by the Contractor.
Cash Security
37.6
If the Contractor receives or retains security in cash or converts security to
cash, that security is held in trust by the Contractor from the time it receives,
retains or converts it.
37.7
If the Contractor receives payment under the Contract for, or on account of,
work done or Materials supplied by the Subcontractor, and does not pay the
Subcontractor the whole amount to which the Subcontractor is entitled
under the Subcontract, the difference is held in trust for payment for the
work done or Materials supplied.
37.8
The Contractor must deposit all money it receives in trust under clauses
36.6 and 37.7 into a trust account in a bank selected by the Contractor no
later than the next Business Day, and:
37.8.1
the money must be held in trust for whichever party is entitled to
receive it until it is paid in favour of that party (subject to clause
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37.5 and 67);
38.
37.8.2
the Contractor must maintain proper records to account for this
money and make them available to the Subcontractor on request;
and
37.8.3
any interest earned by the trust account is owned by the party
which becomes entitled to the money held in trust.
Site access
38.1
Subject to compliance by the Subcontractor with the provisions of clauses
38.2 and 38.3, within the time period stated in Contract Information item 13,
or, if no time period is stated, then within 14 days of the Date of
Subcontract, the Contractor must give the Subcontractor access to the Site,
or enough of it to allow for start of Design (if applicable) and construction of
the Subcontract Works or such part of the Subcontract Works for which
commencement has been authorised.
If the Contractor does not give the Subcontractor access to the Site or
enough of it to allow for start of Design (if applicable) and construction of
the Subcontract Works, or such part of the Subcontract Works for which
commencement has been authorised, by the time specified in clause 38.1,
the Subcontractor may be entitled to an extension of time under clause 54
as its sole remedy and, notwithstanding clause 55, will not be entitled to
any costs, losses, expenses or damages under clause 55, or otherwise.
38.2
The Subcontractor must meet all its obligations under the Subcontract to
provide Undertakings (or the equivalent cash security) and effect insurance
before it is entitled to start any work for or in connection with the
Subcontract.
Refer to clauses 36 (Insurance) and 37 (Security).
38.3
Before Design (if applicable) or construction work commences the
Subcontractor must comply to the extent specified in the Subcontract with
requirements for industrial relations, environmental, safety (including under
all work health and safety legislation) and quality management, other
Statutory Requirements and any other requirements specified in the
Subcontract to be complied with by the Subcontractor before Design (if
applicable) and construction work commences. The Subcontractor is not
entitled to access to the Site or any part of the Site until the Subcontractor
demonstrates to the Contractor that it complies with those requirements.
38.4
Where required for the purposes of the Contract and the Subcontract, at all
reasonable times the Subcontractor acknowledges that the Principal
(including its authorised employees and agents) and the Contractor will
require access to the Site and to the premises of the Subcontractor and
must arrange for such access to the premises of Sub-subcontractors,
Suppliers and Consultants. This may include for the purpose of surveillance,
audit, inspection, Testing, certification, recording of information in any form
or for any other reasonable purpose required by the Principal and the
Contractor in connection with the Contract and the Subcontract.
Access for Principal’s contractors
38.5 If required by the Principal (by written notice to the Contractor), the
Contractor must permit persons engaged by the Principal (“Principal’s
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contractors”) to have access to the Site, to deliver and store materials on
the Site and to carry out work on the Site, and must take all reasonable
measures to cooperate with them and coordinate the Subcontractor’s work
with their work.
39.
Engagement of Valuer
39.1
At the discretion of the Principal and the Contractor, a Valuer may be
engaged under the Contract to determine the value and time associated
with Variations and other matters referred to the Valuer under the Contract.
39.2
To the extent specified in the Subcontract, the Subcontractor is bound by
any determination of the Valuer.
The Site
40.
Site information
40.1
The parties acknowledge that:
40.1.1
at the Date of Subcontract, the Contractor has provided in good
faith the geotechnical or other information concerning the Site as
specified in Subcontract Information items 36A and 36B;
40.1.2
the information specified in Subcontract Information items 36A and
36B does not form part of the Subcontract;
40.1.3
the Contractor does not guarantee the completeness of the
information specified in Contract Information item 36A;
40.1.4
the Contractor does not guarantee the accuracy, quality or
completeness of the information specified in Contract Information
item 36B;
40.1.5
the Contractor accepts no duty of care in connection with
information listed in Subcontract Information item 36B (or with
having provided it);
40.1.6
the Subcontractor warrants that it:
40.1.7
(a)
has made its own inquiries (including the checking of
information provided by the Contractor) concerning the Site;
(b)
did not in any way rely on the completeness of the
information provided by the Contractor specified in
Subcontract Information Item 36A other than as a guide for
ascertaining what Further Site Information the Subcontractor
considers it needs to obtain under clause 40.3; and
(c)
did not in any way rely on the information (which information
could contain errors, omissions and other inaccuracies)
provided by the Contractor, as specified in Subcontract
Information item 36B; and
the Subcontractor also warrants that it has made its own
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interpretations, deductions and conclusions from the information
provided by the Contractor and did not in any way rely on
interpretations, deductions and conclusions made by or for the
Contractor.
Other information concerning the Site may be included in the Contract.
40.2
41.
The Subcontractor warrants that it has:
40.2.1
examined the Site and surrounds and satisfied itself through its
own investigation as to the condition and characteristics which
may be encountered on, in or under the Site (including sub-surface
conditions) and as to the further geotechnical or other information
for the Site that may be required to be obtained by the
Subcontractor; and
40.2.2
made its own assessment of the risks, contingencies and other
circumstances which might affect the Subcontract Works and has
allowed fully for these in the Subcontract Price (subject to clause
41).
40.2.3
If the Contractor considers that further geo-technical or other
information for the Site is required, it may obtain Further Site
Information and must give the Contractor details of Further Site
Information as it is obtained.
40.2.4
Further Site Information does not include any information in the
Subcontract Documents or information which by the Subcontract
the Subcontractor is required to otherwise obtain.
40.2.5
Except if the Subcontract provides otherwise, the Subcontractor
must bear the cost of obtaining Further Site Information.
Site Conditions
Early warning should serve to reduce the severity of possible cost and time implications
when adverse Site Conditions are encountered. For this purpose, the Subcontractor is
encouraged to obtain Further Site Information in advance of construction.
41.1
The Subcontractor agrees that it has no other entitlement arising out of or in
connection with Site Conditions other than as referred to in this clause 41.
41.2
If the Contractor encounters, in the execution of the Subcontract Works
(including when obtaining Further Site Information), Site Conditions which
are materially adverse in comparison to the Site Conditions which the
Subcontractor should have reasonably foreseen at the Date of Subcontract,
having regard to the warranty in clause 40.2, the Subcontractor must notify
the Contractor in writing forthwith and in any event within 7 days of
encountering these Site Conditions (and prior to making any related
Subcontractor 's Claim), giving full details of:
41.2.1
the Site Conditions encountered;
41.2.2
the manner in which they are said to be materially adverse (having
regard to the warranty in clause 40.2), together with information
supporting this contention;
41.2.3
the effect on the Subcontract Works;
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41.2.4
subject to clause 41.8, the estimated additional cost (if any) of
dealing with the Site Conditions encountered and the additional
work and resources involved;
41.2.5
the delay (if any) to progress of the Subcontract Works; and
41.2.6
any other relevant matters.
The Contractor may request the Subcontractor to provide any further
information relating to the circumstances of the Site Conditions
encountered.
41.3
The Subcontractor is solely responsible for dealing with the Site Conditions
encountered in a manner so as to minimise any extra costs and in a manner
to which the Contractor has no objection.
41.4
Subject to clause 41.8:
41.4.1
the Subcontractor will be entitled as an adjustment to the
Subcontract Price to its direct, reasonable additional costs
(including costs of delay or disruption), necessarily and
unavoidably incurred by the Subcontractor in dealing with
materially adverse Site Conditions, from the date of provision to
the Contractor of the written notice required by clause 41.2, having
taken all reasonable steps to minimise the costs in dealing with
materially adverse Site Conditions; and
41.4.2
the Subcontractor may also be entitled to an extension of time for
Completion under clause 54 for delays caused by the materially
adverse Site Conditions occurring from the date of provision to the
Contractor of the written notice required by clause 41.2.
41.5
If a Variation is instructed or agreed as a result of Site Conditions shown by
Further Site Information given to the Contractor no later than 21 days before
construction on the relevant part of the Site would have started, but for the
Variation, it must be dealt with (including the matters of value and extension
of time for Completion) under the Variation procedures in clause 52.
41.6
If a Variation is instructed or agreed as a result of Site Conditions, but the
Subcontractor does not give to the Contractor the Further Site Information
within the time provided in clause 41.5;
41.6.1
the Variation must be valued under clause 52 but the value of the
Variation must exclude the costs of any aborted work arising out of
the Variation; and
41.6.2
no payment will be made to the Subcontractor for costs of delay or
any aborted work under any other provision of the Contract or
otherwise.
41.7
Clause 41.6 applies regardless of any provisions to the contrary in the
Subcontract.
41.8
Notwithstanding anything in clause 41, when specified in Contract
Information item 41 that the Subcontractor is to bear the full risk of
encountering and dealing with materially adverse Site Conditions:
41.8.1
the Subcontractor is not entitled to the costs of dealing with
Page 29 of 69
materially adverse Site Conditions; and
41.8.2
41.9
notwithstanding clause 54, if the Subcontractor is or will be
delayed in reaching Completion as a result of dealing with
materially adverse Site Conditions, the Subcontractor will not be
entitled to an extension of time for Completion.
If a Variation is instructed or agreed as a result of Site Conditions, the
parties' rights and obligations are not affected by clause 41.8.
41B. Collaboration in design, planning and cost control
41B.1
The Subcontractor must contribute to deliberations of the Principal’s
Project Team on all matters concerning planning, plant, structural
methods, constructability, servicing systems, programming, and
progressive cost control. In this role it is required that the Subcontractor
provides input before design and documentation solutions are finalised.
41B.2
The Subcontractor must assist the Contractor and the Principal’s Project
Team to evaluate and initiate alternative construction methods and
actively assist with the documentation of the selected scheme so the
Principal’s Project Team may collectively achieve an economic solution
that satisfies the aesthetic and functional design requirements of the
brief.
41B.3
The Subcontractor must contribute constructability advice aimed at
achieving efficient functionality and site operation during all stages of
construction.
41B.4
The Subcontractor must develop, in conjunction with the Contractor, a
plan for the pro-active investigation and management of potential site
and building conditions with the objective of minimising the impact on
budget and program through comprehensive documentation of the
requirements.
41B.5
The Subcontractor must contribute to the process of contract
documentation with the objective of achieving comprehensive and
complete documents.
41B.6
Not used
41B.7
Not used
41B.8
The Subcontractor must attend meetings with the Contractor and the
Principal’s Project Team on matters of design, construction, budget and
program as required.
41B.9
Not used
41B.10
The Subcontractor must do everything in its power to:
41B.10.1 not used;
41B.10.2 assist the Principal to minimise Variations; and
41B.10.3 minimise the cost of Variations.
41B.11
The Subcontractor must:
41B.11.1 not used;
41B.11.2 provide advice on design and construction problems as they
arise;
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41B.11.3 provide costing advice to the Contractor and the Principal’s
Professional Service Contractors during the preparation of
progressive estimates of cost;
41B.11.4 assist in the costing of acceptable alternatives to enable
budgets to be achieved and participate in value management
exercises and savings strategies as required;
41B.11.5 propose innovations;
41B.11.6 not used; and
41B.11.7 work collaboratively with the Contractor, Principal and the
Principal’s Professional Service Contractors to minimise
delays and to resolve design and construction problems
arising from any cause.
Design
The Subcontractor may have some design, design coordination and design management
responsibility. The extent of Design by the Subcontractor may be as little as shop detailing, as
much as the full Design of the Subcontract Works, or it may be some requirement in between, and
Clause 43 applies in all these cases.
In addition, the Subcontractor may be required to check, adopt and be responsible for design
carried out before the Date of Subcontract by the Contractor or by the Principal. In that case, it is
specified in Contract Information item 38, and clause 44 applies.
42.
Ambiguities
Clause 42 applies to all Subcontract Documents, including Contractor's
Documents.
42.1
The Subcontractor, in addition to any responsibility to check Contractor's
Documents under clause 44 (if applicable), must check the Subcontract
Documents and notify the Contractor of any ambiguities, inconsistencies or
discrepancies at least 21 days before the Subcontractor proposes to use
them for Design (if applicable) or construction (including procurement,
manufacture or fabrication of any part of the Subcontract Works) or for other
Subcontract purposes.
42.2
The Contractor must resolve any ambiguities, inconsistencies or
discrepancies in the Subcontract Documents which are notified by the
Subcontractor to the Contractor for resolution.
42.3
Subject to clause 42.4, if the resolution in clause 42.2 results in the
Subcontractor incurring increased or reduced costs than the Subcontractor
should reasonably have anticipated at the time of tender, the Subcontract
Price must be adjusted by the difference in costs agreed or valued under
the procedures in clause 52 (and where applicable, dealt with under clauses
72 to 75). In the assessment of what the Subcontractor should reasonably
have anticipated (as referred to above) regard must be had to the provisions
of the Subcontract, in particular clause 10, and to whether the ambiguity,
inconsistency or discrepancy was (or should have been) reasonably
apparent to the Subcontractor at the time of tender.
42.4
If the Subcontractor fails to take the steps required in clause 42.1, and a
Variation is instructed by the Contractor due to any ambiguity, inconsistency
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or discrepancy:
43.
42.4.1
the Subcontractor will not be entitled to costs for delay or the cost
of any aborted work (including Design) resulting from the Variation;
except that
42.4.2
if clause 44 is not applicable, the Subcontractor will be entitled to
the reasonable and unavoidable cost of any aborted work
(including Design) if the ambiguity, inconsistency or discrepancy is
included in the Contractor's Documents forming part of the
Subcontract Documents.
Subcontractor's Documents
43.1
The Subcontractor must produce Subcontractor's Documents which meet
the requirements of all of the following:
43.1.1
the Subcontract;
43.1.2
Contractor's instructions;
43.1.3
Statutory Requirements;
43.1.4
the Building Code of Australia (if required in Contract Information
item 37B), and relevant Australian Standards; and
43.1.5
if no other standard is specified in the Subcontract, then good
industry standards applicable to the Subcontract Works.
43.2
The Subcontractor acknowledges that the Subcontractor must not change
the Contractor's design in the Contractor's Documents without the
Contractor's prior written approval. Whenever requested by the Contractor,
the Subcontractor must promptly confirm in writing that Subcontractor's
Documents are consistent with and comply with the Contractor's Documents
and other relevant Subcontract Documents. If the Contractor's design is
required to be changed (with the Contractor's prior written approval), the
Variation must be dealt with under the procedures in clause 52.
43.3
The Subcontractor warrants that Subcontractor's Documents and any
related Design, materials, documents and methods of working will not
infringe any Intellectual Property Rights. The Subcontractor indemnifies the
Principal and the Contractor against any costs, losses, expenses or
damages arising out of the Subcontractor infringing any Intellectual Property
Rights.
43.4
The Subcontractor must produce Subcontractor's Documents which will
ensure that the Subcontract Works and every part of them are fit for the
purposes required by the Subcontract. This responsibility is reduced to the
extent that the Subcontractor's Documents are not fit because of design
work by the Contractor for which the Contractor retains responsibility.
The Contractor retains responsibility for design work by the Contractor
except as provided by clause 44, if it applies.
43.5
The requirements of clause 43.4 are not reduced or affected by any
Variations.
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44.
Adopting Contractor's Documents
This clause only applies when this is indicated in Subcontract Information item 38. It does
not replace any other provisions of the Subcontract, but adds further responsibilities when
required.
If clause 44 applies, the Subcontractor must accept full responsibility for design carried out
by the Contractor (or the Principal) before the Date of Subcontract, in addition to Design to
be carried out by the Subcontractor.
44.1
If Contract Information item 38 specifies that the Subcontractor must accept
full responsibility for design carried out by the Contractor (or the Principal),
then before submitting Subcontractor's Documents to the Contractor in
accordance with clause 45 the Subcontractor (at its own cost) must:
44.1.1
check, and notify the Contractor of details (together with
appropriate supporting documents) of any Fault in the Contractor's
Documents;
44.1.2
amend the documents to correct Faults so that, on Completion, the
Subcontract Works and every part will be fit for the purposes
required by the Subcontract; and
44.1.3
accept and adopt the Contractor's Documents as if the
Subcontractor prepared them so that they (amended by the
Subcontractor as necessary) become Subcontractor's Documents
when submitted under clause 45.
See clause 43 for requirements applying to Subcontractor's Documents.
44.2
Subject to any provisions of the Subcontract which provide for change to the
Contractor's Documents and clause 42, the Contractor must instruct a
Variation if the Subcontractor notifies the Contractor of a Fault in the
Contractor's Documents and the Contractor requires a change to the
Subcontract Works as a result.
44.3
If Contractor's Documents adopted by the Subcontractor contain a Fault not
notified to the Contractor by the Subcontractor in accordance with clause
44.1.1:
44.3.1
the Subcontractor will be responsible for, and not entitled to
payment for delays or the cost any of aborted work arising out of
the Fault; and
44.3.2
the value of any Variation the Contractor instructs as a result of the
Fault must not include the cost of such delays or aborted work.
44.3.3
The Subcontractor acknowledges that the Contractor's design is
incomplete and may contain Faults or conflict with Statutory
Requirements or the Building Code of Australia (if applicable, as
referred to in Contract Information item 37B) or other codes or
standards which the Subcontractor is required to comply with
under the Subcontract.
44.3.4
The Contractor makes no representation concerning Contractor's
design and the Subcontractor is not entitled to rely on the
completeness or accuracy of the Contractor's design.
44.3.5
The Contractor relies on the Subcontractor to identify and remedy
Faults in the Contractor's Documents.
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45.
46.
Submitting Subcontractor's Documents
45.1
The Subcontractor must submit Subcontractor's Documents (as developed
progressively and in stages, but so that each part is complete and in
sufficient detail to explain what is proposed) to the Contractor at least 21
days before the date the Subcontractor proposes to use them for
construction (including procurement, manufacture or fabrication) of any part
of the Subcontract Works. The Subcontractor must provide the number of
copies of the Subcontractor's Documents specified in Subcontract
Information item 19 when submitting Subcontractor's Documents.
45.2
To the extent specified in the Subcontract, the Subcontractor must
undertake design review and consider the Design with those persons
specified in the Subcontract Documents, or those persons identified by the
Contractor, including those involved in using or occupying any part of the
Subcontract Works as end users. The Subcontractor must carry out such
design review and consideration with the Contractor and those other persons
and develop the Design and Subcontractor's Documents using the
outcomes of this review and consideration. The Subcontractor must then
submit to the Contractor for its consideration any necessary amendments to
the Contractor's Documents proposed by the Subcontractor, including those
arising out of the design review and consideration, prior to the
Subcontractor submitting Subcontractor's Documents, as referred to in
clause 45.1.
45.3
The Contractor need not respond to the Subcontractor about the
Subcontractor's Documents submitted.
45.4
If the Contractor objects to the Subcontractor's Documents, the
Subcontractor must take the objections into account and discuss them with
the Contractor. The Subcontractor must correct any Fault in the
Subcontractor's Documents.
45.5
Notwithstanding the design review and consideration by others under clause
45, the Subcontractor remains fully responsible for all Subcontractor's
Documents.
45.6
Nothing the Contractor does or omits to do in connection with this clause 45
makes the Contractor liable for Subcontractor's Documents, or prevents the
Contractor from relying on or enforcing a right, under the Subcontract or
otherwise.
Innovation
This clause provides an incentive to the Subcontractor to improve its service to the
Contractor by innovation. If the Contractor accepts the Subcontractor's proposal, the
Subcontractor benefits by retaining immediate savings in its costs; the Principal or
Contractor benefit from the added value to the Works, reduced operating or maintenance
costs, or similar savings. Alternatively, if stated in Subcontract Information Item 42, the
parties agree to share the savings in costs derived from an innovation.
46.1
The Subcontractor may submit in writing to the Contractor, at its own cost, a
detailed proposal for changes to the Subcontract Works, including Design or
Materials, which is likely to offer significant benefits (including long-term or
repeated benefits) to the Principal or the Contractor.
46.2
If the Contractor requires it, and if the Subcontractor wants to proceed with
the proposal, the Subcontractor must provide (at no cost to the Contractor
and the Principal) a report on the details, implications and benefits of the
proposal. The report must be prepared by a Consultant acceptable to the
Page 34 of 69
Contractor and the Principal.
46.3
The proposal must not include anything which might adversely affect the
quality of Design or construction or operation or maintenance of the
Subcontract Works.
Proposed changes must be consistent with the purpose and intent of the
Subcontract and the Subcontract Works.
46.4
The Contractor must consider the Subcontractor's proposal, but is not
bound to accept any proposal or proposed changes. No Subcontractor's
Claim will arise out of the Contractor's consideration of or failure to accept
any proposal or proposed changes.
46.5
Subject to clause 46.7 and 46.8, if the Contractor accepts any changes
proposed by the Subcontractor, any actual direct saving in the cost to the
Subcontractor of the Subcontract Works resulting from the changes will be
for the benefit of the Subcontractor.
46.6
The Contractor may accept the proposed changes subject to conditions.
46.7
The Subcontractor is fully responsible to the Contractor for the compliance
of the Subcontract Works and for the changes and their consequences.
46.8
Notwithstanding the provisions of clause 46.5, if indicated in Subcontract
Information item 42, the savings in the cost to the Subcontractor of the
Subcontract Works with the changes proposed by the Subcontractor and
accepted by the Contractor under clause 46 must be shared by the
Subcontractor and the Contractor in the proportions of the savings stated in
Subcontract Information item 42. The calculated savings must include the
assessed reduction in the costs of the Subcontract Works to the
Subcontractor and Sub-subcontractors and Suppliers, less any costs
incurred by the Contractor in assessing or implementing the changes,
including but not limited to related design work.
Construction
47.
Setting out the Works
47.1
The Subcontractor must set out and construct the Subcontract Works at the
locations and levels specified in or required by the Subcontract.
47.2
The Subcontractor may request in writing from the Contractor any
necessary additional information to be provided by the Contractor relating to
setting out the Subcontract Works not included in the Subcontract
Documents. The Subcontractor must make the request at least 14 days
prior to the date the Subcontractor proposes to use the information for set
out for construction of the part of the Subcontract Works to which the
information applies. As soon as practicable, the Contractor must provide
any additional information which it has or can reasonably obtain.
47.3
While carrying out the Subcontract Works, if the Subcontractor discovers or
is made aware of any error in the location, level, dimension or alignment of
the Subcontract Works:
47.3.1
the Subcontractor must notify the Contractor;
47.3.2
the Contractor need not respond to the Subcontractor about any
error;
Page 35 of 69
47.4
48.
47.3.3
the Contractor may instruct the Subcontractor regarding necessary
rectification work and the subcontractor must comply;
47.3.4
the Subcontractor must rectify any error to ensure that the
Subcontract Works comply with the Subcontract; and
47.3.5
if an error occurs because of the Contractor's design for which the
Contractor retains responsibility and causes the Subcontractor to
incur necessarily and unavoidably any extra costs, the
Subcontractor may be entitled to those extra costs and an
extension of time under clause 54.
The Subcontractor must give the Contractor a copy of a survey showing the
Subcontract Works as constructed on the Site, including the relationship of
the Subcontract Works to any relevant property boundaries, easements,
(including any right of way) and improvements on the Site. If requested in
writing by the Subcontractor, the Contractor may agree (but is not obliged to
do so) by notice in writing that certain matters can be excluded from the
survey. The survey must be performed by a registered surveyor or other
surveyor to whom the Contractor has no objection.
Construction
48.1
48.2
The Subcontractor must supply all Materials and construct the Subcontract
Works in accordance with all of the following:
48.1.1
the Subcontract;
48.1.2
the Subcontractor's Documents;
48.1.3
the Contractor's instructions concerning the Subcontract Works;
48.1.4
Statutory Requirements;
48.1.5
the Building Code of Australia (if applicable, as referred to in
Subcontract Information item 37B), and relevant Australian
Standards; and
48.1.6
if no other standard is specified in the Subcontract, then good
industry standards applicable to the Subcontract Works.
The Subcontractor must comply with this clause 48 and ensure that the
Subcontract Works and every part of them are fit for the purposes required
by the Subcontract. This responsibility is reduced to the extent that the
Subcontract Works are not fit because of design work by the Contractor for
which the Contractor retains responsibility.
The Contractor retains responsibility for design wok by the Contractor except as provided by
clause 44, if it applies.
48.3
49.
The provisions of clause 48.2 are not reduced or affected by any Variations.
Testing
49.1
The Subcontractor must:
49.1.1
Test (at its own cost) all parts of the Subcontract Works specified
in the Subcontract to be Tested;
Page 36 of 69
50.
49.1.2
The Contractor may instruct the Subcontractor at any time to Test
any part of the Subcontract Works. The Contractor must pay for
the Tests (as an addition to the Subcontract Price) if the results of
the Tests show full compliance with the Subcontract. Otherwise,
the Subcontractor must pay.
49.1.3
The Subcontractor must repeat the Tests (at its own cost) of all
parts of the Subcontract Works where Defects have been found,
until the results of these Tests, as reported in writing to the
Contractor, confirm that all Defects have been made good and that
the Subcontract Works comply with the Subcontract.
Defects
The Contractor considers the Subcontractor to be an expert in Design and construction of
the Subcontract Works and holds the Subcontractor responsible for its work. The
Contractor requires Completion to be defect-free.
These Defects provisions are to ensure that the Subcontract Works are constructed to the
standards required by the Contractor. The Contractor can also rely on its common law
rights. Also refer to clause 71 which deals with Defects after Completion.
50.1
The Subcontractor must identify and promptly make good all Defects so that
the Subcontract Works comply with the Subcontract. This requirement does
not affect any other remedy or right of the Contractor.
50.2
At any time before Completion, the Contractor may instruct the
Subcontractor to make good Defects within the time specified in a Defect
Notice issued by the Contractor.
A similar provision applies after Completion under clause 71.1.
50.3
50.4
50.5
If the Subcontractor fails to make good the Defects in the time specified in
the Defect Notice, the Contractor may have the Defects made good by
others and then:
50.3.1
the cost will be a debt due to the Contractor and may be deducted
from the Subcontract Price, unless a Variation applies under
clause 50.5; and
50.3.2
the Subcontractor will be responsible for the work involved in
making good the Defects as if the Subcontractor had performed
the work.
Nothing in this clause 50:
50.4.1
reduces the Subcontractor's warranties and other liabilities and
obligations under the Subcontract; or
50.4.2
affects the Contractor's common law right of damages.
If at any time before Completion the Subcontractor becomes aware of any
defect which results from design or other work or actions for which it is not
responsible, it must:
50.5.1
promptly notify the Contractor; and
50.5.2
make good the defect as a Variation under clause 52 if instructed
to by the Contractor.
Page 37 of 69
51.
Acceptance with Defects not made good
51.1
The Contractor, in its absolute discretion (and at any time, whether before or
after Completion), may accept that specific Defects defined by the
Contractor need not be made good.
51.2
Before the Contractor does so:
51.2.1
the Contractor may propose deductions from the Subcontract
Price, and any terms it requires;
51.2.2
if the Subcontractor agrees with the deductions and the terms, the
Subcontract Price will be adjusted accordingly; and
51.2.3
if the Subcontractor agrees with the terms but not with the
proposed deductions:
(a)
the Subcontractor is bound by any determination of the
Valuer under the Contract in respect of the deductions
(provided their value if separately identifiable in the Valuer's
certificate) adjusted to take account of the Contractor's
Margin; or
(b)
if there is no Valuer under the Contract or if there is no
separately identifiable value determined by the Valuer under
the Contract, the Contractor must determine a reasonable
price for the deductions under clause 52.5.
51.3
If the parties do not agree in writing on the Contractor's terms, the
Subcontractor must make good the Defects defined by the Contractor.
51.4
The Subcontractor remains liable for Defects whether known or not known
at the time the Contractor accepts that defined Defects need not be made
good under this clause 51.
Changes to work
52.
Variations
Variation instructions
52.1
The Contractor may instruct Variations in writing at any time before
Completion (and after Completion in accordance with clause 71.1), and the
Subcontractor must comply with these instructions.
52.2
Unless the Contractor considers that urgent or special circumstances exist
and instructs the Subcontractor to proceed, the Subcontractor must not
begin to carry out a Variation until:
52.2.1
the parties have agreed on its value (including delay costs under
clause 55.1) and time implications; or
52.2.2
a party to the Contract has made a request to the Valuer, if a
Valuer is engaged; or
52.2.3
where no Valuer is engaged under the Contract, the Contractor
makes a determination under clause 52.5 and instructs the
Subcontractor to proceed, in each case in accordance with clause
Page 38 of 69
52.4.
Variation Pricing
52.3
When requested to by the Contractor, the Subcontractor must advise the
Contractor of its price (including amounts for any delay costs claimed in
accordance with clause 55.1) for a proposed Variation and its effect (if any)
on the time for Completion, or on any other matter specified, within the time
specified in the request. In advising the Contractor of its effect on the time
for Completion, the Subcontractor thereby acknowledges its responsibility to
take all reasonable steps:
52.3.1
to carry out the work concurrently with other work whenever
possible; and
52.3.2
to otherwise minimise the effects of the Variation on the
Contractual Completion Date, including for any Subcontract
Milestone.
Valuer’s determination
52.4
If the parties agree that a Variation applies, they must endeavour to agree in
writing on its value and effect on the time for Completion (if any). Failing
agreement on value or time, then:
52.4.1
52.4.2
the Subcontractor is bound by any determination of the Valuer
under the Contract in respect of that Variation, if:
(a)
its value is separately identifiable in the Valuer's certificate;
and
(b)
before the determination, the Subcontractor was given an
opportunity to provide information or make known its views
to the Valuer, either directly or as part of a submission by a
party to the Contract;
but if there is no such determination by the Valuer under the
Contract, then the Contractor must determine reasonably the value
or the adjustment to the time for Completion or both (whichever is
not agreed), in accordance with clause 52.5.
Contractor's determination
52.5
The Contractor must make any determination under clause 52.4.2 as
follows:
52.5.1
If a Variation involves additional or increased work, its value is the
sum of the following:
(a)
the additional reasonable material and plant costs of the
Subcontractor;
(b)
the additional reasonable costs of Sub-subcontract work
involved in carrying out the Variation;
(c)
the additional percentage in Subcontract Information item
48A on the total costs of clauses 52.5.1(a) and 52.5.1(b),
which allows for the Subcontractor's Margin; and
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(d)
52.5.2
52.6
the additional labour costs of the Subcontractor at the hourly
rate in Subcontract Information item 48B.
If a Variation involves decreased or omitted work, its value is that
of the work included in the Subcontract Price:
(a)
as specified in the Subcontract, or otherwise as determined
by the Contractor based on the rates and sums in the
Subcontract or otherwise applying at the Date of
Subcontract; and
(b)
including a reasonable Subcontractor's Margin and a
reasonable allowance for any time-dependent costs not
included in the Subcontractor's Margin which will not be
incurred as a result of the decreased or omitted work.
52.5.3
The Contractor must not include any Subcontractor's Margin in the
costs in clauses 52.5.1(a) and 52.5.1(b).
52.5.4
The Contractor must not include any amount in the valuation of
Subcontract work under clause 52.5.1(b), for extra costs, losses or
expenses attributable to any default or negligence of the
Subcontractor.
52.5.5
The Contractor must not include any amount in the valuation of a
Variation for costs of delay or disruption caused by the Variation.
52.5.6
If the Variation involves an omission or decrease in work, the
Contractor must determine a reasonable reduction to the time for
Completion.
The Subcontract Price must be adjusted to account for the value of the
Variation.
Disputed Variations
52.7
If the parties do not agree that a Variation applies, all issues relating to the
claimed Variation must be dealt with under the Issue resolution procedure in
clauses 72 to 75.
52.8
The Subcontractor acknowledges that the development of Design (if
applicable) by the Subcontractor does not constitute a Variation.
52.9
Regardless of any other provision of the Subcontract, if the Subcontractor
considers that a Variation applies but the Contractor has not instructed a
Variation, the Subcontractor must make its Subcontractor's Claim within 5
days from the start of the event giving rise to the Variation, or from the time
when the event should have become known to the Subcontractor with
reasonable diligence on its part (as applicable).
Refer also to clause 72.3.
52.10 Variations instructed by the Contractor must be generally consistent with or
of a similar nature to the work included in the Subcontract Works at the Date
of Subcontract.
Variations under the Contract
52.11 If a Variation (as defined in the Contract) is instructed under the Contract
which results in a substantial change (including any omission or decrease of
Page 40 of 69
work) in the Subcontract Works, the Subcontractor must comply with the
Contractor's instructions to vary the Subcontract Works. This does not
cause any default on the part of the Contractor or any entitlement of the
Subcontractor to compensation (other than in the case of a Variation
requiring the Subcontractor to carry out increased or extra work or changed
work).
53.
Changes in Statutory Requirements
53.1
If Statutory Requirements change after the Date of Subcontract and a
change to the Subcontract Works may be required as a result, the
Subcontractor must promptly notify the Contractor. The Contractor must
instruct a Variation under clause 52 if the Contractor requires a change to
the Subcontract Works as a result.
Changes to time
The Subcontractor is responsible for managing progress to meet Contractual Completion Dates for
Subcontract Milestones of any) and for the Subcontract Works. These dates or times for
Completion are initially given in the Subcontract Information, but may be adjusted under clauses 41
(Site Conditions), 52 (Variations), 54 (Extensions of time), and 56 (Acceleration).
54.
Extensions of time
Under the conditions set out in clause 54 the Contractor will extend the time for Completion
if there is nothing the Subcontractor can reasonably do to avert circumstances beyond its
control to avoid delay. Refer also to clauses 25 Time management and 69 Completion.
54.1
If the Subcontractor is or will be delayed in reaching Completion, the
Subcontractor will be entitled to an extension of time for Completion for the
number of days assessed by the Contractor, if the Subcontractor satisfies
the Contractor that all the following conditions apply:
54.1.1
The cause of the delay was beyond the control of the
Subcontractor (including an act, default or omission of the
Contractor, but not including a Variation instructed or agreed by
the Contractor or otherwise determined).
Extensions of time for Variations are dealt with under clause 52 or under clauses 72
to 75.
54.1.2
The Subcontractor has taken all reasonable steps to avoid and
minimise the delay and its effects.
54.1.3
The Subcontractor has given to the Contractor each of the notices
required under clauses 54.2 and 54.3.
54.1.4
The delay occurred to an activity or activities on a critical path of
the then current Contract Program, as provided for in clause 25,
and the Subcontractor has submitted this Contract Program with
the notice required under clause 54.3.
54.2
The Subcontractor must give the Contractor notice of the delay, its cause,
relevant facts, and its expected impact, as soon as practicable (and in any
event within 3 days) after the delay commenced.
54.3
Within 7 days of commencement of the delay, the Subcontractor must give
Page 41 of 69
the Contractor notice of the extension of time claimed, together with the
information required under clause 25.11 and other information sufficient for
the Contractor to assess the Subcontractor's Claim. If the delay continues
for more than 7 days, the Subcontractor must give a further notice every 14
days thereafter, until after the delay ends, if the Subcontractor wishes to
make a Subcontractor's Claim for a further extension of time, together with
further information of the kind required by this clause 54.3,
55.
54.4
An extension of time is only given for delays occurring on days on which the
Subcontractor usually carries out work for the Subcontract.
54.5
When concurrent events cause a delay in reaching Completion and one or
more of the events is within the control of the Subcontractor, then to the
extent that the events are concurrent, the Subcontractor will not be entitled
to an extension of time for Completion notwithstanding that another cause
of the delay is such that the Subcontractor would have had an entitlement to
an extension of time.
54.6
The Contractor may in its absolute discretion for the benefit of the
Contractor extend the time for Completion at any time and for any reason,
whether or not the Subcontractor has made a Subcontractor's Claim for an
extension of time. The Subcontractor is not entitled to an extension of time
for Completion under this clause 54.6 unless the Contractor exercises its
discretion to extend the time for Completion.
54.7
This clause 54 is subject to the provisions of any other clause in the
Subcontract which entitles the Subcontractor to an extension of time for
Completion.
Delay costs
Delays caused by the Contractor
Clauses 55.1 and 55.2 prescribe the Subcontractor's rights when the Contractor causes a
delay to the Subcontractor in reaching Completion. Where prescribed in the Subcontract,
the Subcontractor may be entitled to payment of delay costs which are caused by a
specified delaying event. Otherwise, the Subcontractor is not entitled to extra payment for
delay, disruption or interference of any nature whatsoever caused by the Contractor
(including for a breach of the Subcontract by the Contractor).
55.1
Subject to clause 55.1A, the Subcontractor is entitled to delay costs at the
rate or rates in Contract Information item 51A, for the number of days by
which the time for Completion is extended because of a delay caused only
by:
55.1.1
a Variation, other than one for which, under clauses 41.6, 42.4 and
44.3, there is no payment for delays; or
Clause 41.6 deals with Site Conditions, 42.4 with ambiguities in the Contract
Documents, and 44.3 with Faults in Contractor's Documents.
55.1.2
a breach of the Subcontract by the Contractor which causes delay,
disruption or interference to the Subcontractor carrying out the
Subcontract Works.
55.1A Any payment under clause 55.1 is subject to the following exceptions:
55.1A.1 where the Subcontract provides for Subcontract Milestones each
with a separate Contractual Completion Date, an amount shall only
be payable under clause 55.1 where the Subcontractor has been
granted an extension of time in respect of the Contractual
Page 42 of 69
Completion Date which is latest in time (and not otherwise);
55.1A.2 where an event causes concurrent delays to more than one
Subcontract Milestone, then to the extent the delays are
concurrent, the delay rate shall only be applied once;
55.1A.3 delay costs shall only be calculated for days on which the
Subcontractor usually carries out work for the Contract; and
55.1A.4 nothing in clause 55.1 shall oblige the Contractor to pay extra
costs for delay or disruption which have already been included in
the value of a Variation or any other payment under the
Subcontract.
55.2
The rate or rates of delay costs will be reduced where the Principal (or
anyone authorised by the Principal) is using or occupying any part of the
Works prior to Completion, under clause 68. This reduction in the delay
costs will be determined by the Contractor acting reasonably. The reduced
rate or rates of delay costs will be the same proportion of the full rate or
rates as is the value (as agreed by the parties or failing agreement, as
determined reasonably by the Contractor) of the remaining work to achieve
Completion to the Subcontract Price.
55.3
The Subcontractor's only remedies for delay, disruption or interference of
any nature whatsoever caused by the Contractor (including for a breach of
the Subcontract by the Contractor, as referred to in clause 55.1.2) whether
under the Subcontract, at law or otherwise, are an extension of time for
Completion under clauses 41, 52 or 54, and delay costs under clause 55.1
and 55.2.
Delay to Completion
If indicated in Subcontract Information Item 51, the Subcontract provides for liquidated
damages to be payable by the Subcontractor to the Contractor, if the Subcontractor fails to
achieve Completion by the Contractual Completion Date.
55.4
If the Subcontractor fails to achieve Completion by the Contractual
Completion Date as required by clause 69, the Subcontractor will be liable
to pay the Contractor liquidated damages as a debt due and owing at the
rate stated in Subcontract Information item 51B for every day after the
Contractual Completion Date to and including the Actual Completion Date.
If, however, the Subcontract is terminated under clauses 78 or 79, before
the Subcontractor reaches Completion, any applicable liquidated damages
for failure to achieve Completion by the Contractual Completion Date will
run to the date of termination of the Subcontract.
55.5
The Contractor, in its absolute discretion, may demand payment of the
liquidated damages amount from the Subcontractor or may deduct, withhold
or set-off the liquidated damages amount from any amount otherwise
payable to, or security provided by the Subcontractor. A failure by the
Contractor at any time to demand payment or to deduct, withhold or set-off
the liquidated damages will not amount to a waiver of or otherwise affect the
Contractor's rights and entitlements.
55.6
If the Contractual Completion Date is extended after the Subcontractor has
paid or the Contractor has deducted liquidated damages, the excess
amount of liquidated damages paid by the Subcontractor or deducted by the
Contractor will be payable by the Contractor to the Subcontractor, subject to
any right of set-off which the Contractor may have.
55.7
The amount of liquidated damages will be reduced where the Principal or
Page 43 of 69
the Contractor (or anyone authorised by the Principal or the Contractor) is
using or occupying any part of the Subcontract Works prior to Completion,
under clause 68. This reduction in the amount of liquidated damages
otherwise payable under the Subcontract will be determined by the
Contractor acting reasonably. The reduced amount will be an amount which
is in the same proportion to the full amount of liquidated damages otherwise
payable as is the value (as agreed by the parties or failing agreement, as
determined reasonably by the Contractor) of that part of the Subcontract
Works used or occupied is to the Subcontract Price.
56.
57.
55.8
The Subcontractor acknowledges that the rate for liquidated damages set
out in Subcontract Information item 51B represents a genuine pre-estimate
of the amount of loss or damage, as calculated at the Date of Subcontract,
which the Contractor is likely to suffer if the Subcontractor fails to reach
Completion by the Contractual Completion Date. The Subcontractor
warrants that it will not challenge the rate for liquidated damages as being in
the nature of a penalty.
55.9
The provisions of clauses 55.4 to 55.8 apply to a failure by the
Subcontractor to achieve Completion by the Contractual Completion Date,
in respect of the Subcontract Works and also in respect of any Subcontract
Milestones.
Acceleration
56.1
The Contractor may instruct the Subcontractor to accelerate progress of the
carrying out of the Subcontract Works. The instruction must be in the form
of an Acceleration Notice, and the Subcontractor must comply unless,
before taking any steps to accelerate, it demonstrates to the satisfaction of
the Contractor that the acceleration as instructed cannot be reasonably
achieved.
56.2
The Subcontractor is not entitled to payment under this clause 56 if no
Acceleration Notice is issued.
56.3
Whenever possible, the parties must agree on the steps to be taken and
basis for payment for acceleration before the Subcontractor takes those
steps, or failing agreement, the Contractor must determine a reasonable
value.
56.4
The Contractor must pay the Subcontractor for acceleration (as an addition
to the Subcontract Price) if it achieves the acceleration instructed by the
Contractor, but the value must take into account any relevant extensions of
time which may be granted under clauses 41, 52 or 54 for delay during the
period of acceleration.
Contractor's suspension
57.1
The Contractor may instruct the Subcontractor to suspend progress of the
Subcontract Works and Temporary Work, and the Subcontractor must
comply.
57.2
The Subcontractor must resume carrying out the Subcontract Works and
Temporary Work when instructed to by the Contractor.
57.3
If the need for the suspension arises from the Contractor's own act or
omission, then the Subcontractor will be entitled to:
57.3.1
any extension of time granted under clauses 52 or 54; and
Page 44 of 69
57.3.2
57.4
58.
(as an addition to the Subcontract Price) its reasonable, direct Site
and off-Site costs of the suspension, unavoidably incurred, having
taken all reasonable steps to minimise the costs.
The Subcontractor has no other remedies in connection with the
suspension.
Subcontractor's suspension
58.1
The Subcontractor may suspend work for or in connection with the
Subcontract if the Contractor:
58.1.1
has both;
(a)
become liable to pay the Subcontractor the full amount of a
Payment Claim made in accordance with clause 62
(excluding payments already made), or the Scheduled
Amount; and
(b)
failed to pay it within the time prescribed by clause 63.
58.2
Before it suspends work under this clause 58, the Subcontractor must give
the Contractor at least 2 Business Days notice of its intention to do so. The
Subcontractor may suspend work on expiry of the 2 Business Days if it has
still not been paid.
58.3
The Subcontractor must resume all work within 3 Business Days of having
been paid the amount referred to in clause 58.1.
58.4
If the Subcontractor elects to suspend work under this clause 58, then it
may be entitled to an extension of time under clause 54, but despite clause
55, the Subcontractor will not be entitled to delay costs or damages under
clause 55.
Payment
59.
The Subcontract Price
59.1
The Subcontract Price, and the rates and/or lump sums it includes, are not
adjusted for rise or fall in the cost of labour or Materials provided by the
Subcontractor, or for new, changed or increased taxes, duties or other
imposts, unless expressly stated in the Subcontract.
If specified in Subcontract Information item 40 that rise and fall adjustments are to be
made, the provisions of Schedule 8 (Cost Adjustment Formula) apply.
Schedules of Rates
59.2
At the Date of Subcontract, quantities in a Schedule of Rates are estimated
only, and the Contractor does not guarantee either the estimated quantities
or the descriptions of the items.
59.3
If a Schedule of Rates is included in the Subcontract, the Subcontract Price
is the sum of the products of the quantities and the relevant rate for each
item in the Schedule of Rates, plus all lump sums of any). Before an item is
completed, the estimated quantity is used in the calculation of the
Subcontract Price. After an item is completed, the actual quantity measured
in accordance with the Contract will be used in the calculation of the
Page 45 of 69
Subcontract Price.
59.4
The Subcontractor is entitled to payment of the Subcontract Price calculated
for actual quantities measured in accordance with the Subcontract.
Provisional Sums and Provisional Quantities
Provisional Sums and Provisional Quantities (if any) are shown in a Reference Subcontract
Document listed at Contract Information item 17.
60.
59.5
The Subcontractor must carry out work which is the subject of a Provisional
Sum as instructed by the Contractor, on the terms the Contractor specifies
in the instruction.
59.6
If the Contractor instructs the Subcontractor to carry out work which will be
the subject of a Provisional Sum the Subcontract Price will be adjusted as
follows:
59.6.1
The amount of the Provisional Sum specified in the Subcontract
must be deducted from the Subcontract Price.
59.6.2
The cost of work performed by a Sub-subcontractor or a Supplier
under a Sub-subcontract or by a Consultant (excluding any
amount payable due to default or negligence of the Subcontractor)
must be added to the Subcontract Price, together with the amount
calculated by applying the Provisional Sum margin percentage
stated in Subcontract Information item 47 to the cost of work.
59.6.3
The cost of any work performed directly by the Subcontractor, and
the cost of Materials supplied directly by the Subcontractor
(including in each case a reasonable allowance for overhead and
profit), must be added to the Subcontract Price without a
Provisional Sum margin.
59.7
If the Contractor does not instruct the Subcontractor to carry out work which
is the subject of a Provisional Sum the amount allowed in the Subcontract
Price for that work must be deducted from the Subcontract Price.
59.8
If the Contractor instructs the Subcontractor to carry out work which is the
subject of a Provisional Quantity and that instruction requires the
Subcontractor to carry out a greater or lesser quantity of work than the
Provisional Quantity, including that no work the subject of the Provisional
Quantity will be carried out, the Subcontract Price must be adjusted by the
amount calculated by multiplying the contract rate applicable to the
Provisional Quantity work by the difference between the Provisional
Quantity and the quantity of work carried out.
Entitlements
60.1
Except as otherwise expressly stated under the Subcontract, the
Subcontract Price is only to be increased if required under any of the
following clauses:
60.1.1
clause 10.4 (Temporary Work);
60.1.2
clause 10.5 (Work methods);
60.1.3
clause 41 (Site Conditions);
60.1.4
clause 42 (Ambiguities);
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60.1.5
clause 49 (Testing);
60.1.6
clause 52.5 (Variations);
60.1.7
clause 55.1.1 (Delay costs);
60.1.8
clause 56.4 (Acceleration);
60.1.9
clause 57.3 (Contractor's suspension);
60.1.10 clause 59.3 (Subcontract Price - Schedules of Rates);
60.1.11 clause 59.6 (Subcontract Price - Provisional Sums);
60.1.12 clause 59.8 (Subcontract Price - Provisional Quantities); and
60.1.13 clause 66 (Interest on late payments).
60.2
60.3
61.
The Subcontract Price may be decreased if required by the Subcontract.
Clauses that allow decreases in the Subcontract Price include:
60.2.1
clause 29.6 (Care of people and property);
60.2.2
clause 36.10 (Insurance — Proof of Cover)
60.2.3
clause 42 (Ambiguities);
60.2.4
clause 50.3 (Defects);
60.2.5
clause 51.2 (Acceptance with Defects not made good);
60.2.6
clause 52.5 (Variations);
60.2.7
clause 59.3 (Subcontract Price - Schedules of Rates);
60.2.8
clause 59.6, 59.7 & 59.8 (Subcontract Price - Provisional Sums
and Provisional Quantities); and
60.2.9
clause 71.1 (After Completion).
The Subcontractor is not entitled to any other payments related to the
subject matter of the Subcontract, under the Subcontract or otherwise,
except:
60.3.1
under clauses 64, 78 and 79;
60.3.2
for breach of the Subcontract; or
60.3.3
where this exclusion is not permitted by law.
Prepayment
Prepayment is an advance payment against the Subcontract Price which provides early
cash flow to the Subcontractor, Sub-subcontractors, Suppliers and Consultants. They can
keep the Prepayment, until it is deducted from amounts otherwise payable towards the end
of the series of Progress Payments or Milestone Payments, unless the Subcontractor
requests earlier return of Undertakings provided to the Principal in respect of the
Page 47 of 69
Prepayment. Prepayment may be utilised by the Subcontractor, Sub-subcontractors,
Suppliers and Consultants for any purpose related to the Subcontract.
61.1
62.
The Subcontractor may claim Prepayment, as advance payment against the
Subcontract Price (separate from Payment Claims) at any time before
achieving Completion if all the following apply:
61.1.1
the total amount claimed for Prepayment is no more than the
amount in Subcontract Information item 44;
61.1.2
if required by the Contractor, and in consideration of the Principal
accepting the Undertaking and providing the Prepayment, the
Subcontractor has provided an Undertaking (additional to
Undertakings required under clause 37) to the Principal for the
amount of the Prepayment allocated to the Subcontractor; and
61.1.3
the Contractor has assigned those Prepayment amounts directly to
the Subcontractor, in writing, and has notified the Principal of the
assignment; and
61.1.4
the Subcontractor has acknowledged in writing to the Principal that
it understands the Principal may make a demand against the
Undertakings in the circumstances provided or in this clause 61.
61.2
The Subcontractor is entitled to receive payment of the amount claimed
within 14 days after all the conditions in clauses 61.1 have been met.
61.3
The Contractor must cause the Undertaking provided for Prepayment to be
returned, after deducting the value of the Prepayment made (as adjusted by
any earlier such deductions) from payments otherwise payable to the
Subcontractor, as follows:
61.3.1
on achieving Completion of the whole of the Subcontract Works;
61.3.2
as requested in writing by the Subcontractor; or
61.3.3
when the total of the Prepayment made (as adjusted by such
deductions) and Payment Claims to date equals or exceeds the
Subcontract Price.
Payment Claims
The Subcontract allows for payment by regular (usually monthly) Progress Payments, or on
the Completion of Subcontract Milestones. The two can be used together.
62.1
Unless otherwise specified in the Subcontract, the Subcontractor must
make Payment Claims for the Claimed Amount based on the Valued
Completed and as specified in clause 62. Subject to clause 62.2, Payment
Claims must be made monthly on the date in each month specified in
Subcontract Information item 49A, starting no earlier than the 14th day after
the Date of Subcontract and ending with the Final Payment Claim referred
to in clause 65. Payment Claims made monthly are to include amounts for
work carried out to the end of the previous month.
62.2
If Subcontract Information item 49B specifies payment by Milestone
Payment, then the Subcontractor may only make a Payment Claim for the
value of a Subcontract Milestone on its Completion. If Subcontract
Information item 49B specifies payment by Milestone Payment and monthly
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Progress Payment, then the Subcontractor must make a Payment Claim in
accordance with this clause 62.2 for Milestone Payments and clause 62.1
otherwise.
62.3
The Subcontractor must submit Payment Claims in the form of Schedule 3
(Payment Claim Worksheet), or in such other form to which the Contractor
agrees.
62.4
A
62.5
62.6
62.7
Payment Claim must:
62.4.1
identify the work and Materials to which the Payment Claim
relates;
62.4.2
indicate the amount of the Progress Payment that the
Subcontractor claims to be due for the work done to which the
payment relates, in accordance with clause 62.1, after allowing for
the retention of the Completion Amount under clause 64 and for
payments already made, as the Value Completed
Payment Claims must show all Subcontractor's Claims:
62.5.1
for amounts the Contractor has agreed to or is required to pay in
connection with a Subcontractor's Claim under clause 72 or
another provision of the Subcontract; and
62.5.2
for interest (if any) due to the Subcontractor under clause 66.
Payment Claims must be accompanied by:
62.6.1
all relevant calculations;
62.6.2
a completed and true statutory declaration executed on the date of
the Payment Claim, in the form of Schedule 7 (Statutory
Declaration) relating to payment of employees, Subcontractors,
Suppliers and Consultants, workers compensation insurance
premiums, payroll tax payments and to all Subcontract monies
held in trust by the Contractor;
62.6.3
Conformance Records showing conformance with particular
requirements of the Subcontract, as provided in the Subcontract,
and the certificates in the form of Schedule 4 (Certificate of
Compliance), signed by the Subcontractor and also by any
Consultants involved in the work, verifying that all work that has
been done including Design and construction with Materials that
have been supplied are in accordance with the Subcontract; and
62.6.4
any other information specified in the Subcontract.
Payment Claims, the Claimed Amount and the Value Completed must not
include amounts for:
62.7.1
subject to the provisions of clause 62.8, work or Materials not yet
incorporated into the Subcontract Works; or
62.7.2
Subcontractor's Claims (including Subcontractor's Claims for
Variations not agreed to by the Contractor, nor determined by the
Valuer, nor determined under clause 52.4.2 or otherwise) not
agreed to by the Contractor or Subcontractor's Claims not yet
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determined, as referred to in clauses 72 to 75.
62.8
62.9
Subject to all of the following conditions, the Subcontractor may include an
amount in a Payment Claim for Materials intended for incorporation in the
Subcontract Works but not yet incorporated, if:
62.8.1
prior to the Subcontractor giving the Payment Claim, the
Contractor agrees in writing to pay the Subcontractor for Materials
not yet incorporated into the Subcontract Works;
62.8.2
the Subcontractor provides a detailed schedule of the specified
Materials and evidence that the Materials are marked in the name
of the Principal and are insured for their full value, no later than 14
days before submitting the Payment Claim;
62.8.3
prior to submitting the Payment Claim the Subcontractor provides
an Undertaking to the Principal equal to the amount to be included
in the Payment Claim for the specified Materials not yet
incorporated into the Subcontract Works;
62.8.4
the only unfixed Materials included in the valuation are those that
have become or, on payment for Materials still unfixed, will
become the property of the Contractor free of any Encumbrance;
62.8.5
the Subcontractor provides to the Contractor evidence of the
Subcontractor's ownership; and
62.8.6
for any such Materials imported or to be imported into Australia the
Subcontractor has given the Contractor a clean on board bill of
lading for the Materials, drawn or endorsed to the order of the
Principal, appropriate insurance certificates and a Customs invoice
for the Materials.
The Subcontractor warrants for itself and for and on behalf of Subsubcontractors and Suppliers that no Encumbrance exists over any
Materials incorporated into the Subcontract Works by the Subcontractor. If
the Subcontract or the Subcontractor's employment under the Subcontract
is terminated by the Contractor, the Subcontractor must ensure that the
Contractor, in respect of any unfixed Materials for which payment has been
made or which have been appropriated to the Subcontract, may enter upon
any premises where the Materials are stored and take possession of these
Materials.
62.10 For work carried out and allowed in each Payment Claim, the following
applies in calculating the Claimed Amount and the Value Completed:
62.10.1 For work covered by a lump sum:
(a)
The Subcontractor may claim a lump sum by instalments
with each Payment Claim calculated as follows. The total of
the lump sum instalments must never exceed the total of the
lump sum.
(b)
For each activity or element of the Works listed in Schedule
3 (Payment Claim Worksheet) under "activity" (column 1),
record the percentage completed under "activity completed
%" (column 4). The value of work claimed for that activity is
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the percentage of the "value of activity" or lump sum (column
3) and is recorded under "Value Completed $" (column 5).
The subtotal of "Value Completed $" amounts for all activities
is recorded in column 5.
62.10.2 For work covered by a Schedule of Rates:
(a)
For each item carried out listed in Schedule 3 (Payment
Claim Worksheet) under "activity" (column 1), calculate the
product of the "quantity completed" (column 4) actually
carried out (measured in accordance with the Subcontract)
and its rate (column 3) in the Schedule of Rates as the
"Value Completed $" and record it in column 5.
(b)
The subtotal of "Value Completed $" of work for all Schedule
of Rates items is recorded in the Payment Claim Worksheet
under "Value Completed $" (column 5).
62.10.3 The Value Completed at the time of the Payment Claim is the sum
of the values of work completed (and subtotal "Value Completed $"
amounts) calculated under clauses 62.10.1 and 62.10.2.
63.
Payments
63.1
When given a Payment Claim by the Subcontractor, the Contractor must
within 15 Business Days:
63.1.1
if it agrees with the Payment Claim, adopt it as its assessment; or
63.1.2
if it disagrees with the Payment Claim, prepare its own
assessment, in consultation with the Subcontractor if appropriate,
and
give to the Subcontractor a Subcontract Payment Schedule.
63.2
The Contractor's assessment in the Subcontract Payment Schedule must:
63.2.1
identify the Payment Claim to which it relates:
63.2.2
indicate the amount of the payment (if any) that the Contractor
proposes to make as the Scheduled Amount; and
63.2.3
if the Scheduled Amount is less than the Claimed Amount
(excluding payments already made) indicate why it is less and Of it
is less because the Contractor is withholding payment for any
reason), the Contractor's reasons for withholding payment.
63.3
If the Scheduled Amount which the Contractor proposes to pay is less than
the Claimed Amount (excluding payments already made), the Subcontractor
may give notice of an Issue under clause 73.
63.4
Reasons why the Scheduled Amount may be less than the Claimed Amount
(excluding payments already made) or for withholding payment include:
63.4.1
disagreement with the Claimed Amount;
63.4.2
progressive retention of the Completion Amount under clause 64;
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63.5
64.
63.4.3
the costs and estimated costs associated with remedying Defects;
63.4.4
amounts the Contractor is otherwise entitled to withhold, set-off or
otherwise deduct;
63.4.5
Prepayment deductions in accordance with clause 61; and/or
63.4.6
exclusion of amounts the Contractor has not agreed, or is not
required, to pay in connection with a Subcontractor's Claim under
clause 72 or another provision of the Subcontract.
The Contractor must pay to the Subcontractor as a Progress Payment the
Scheduled Amount by the later of:
63.5.1
the number of Business Days specified in Subcontract Information
item 49C (or if no period is specified than 15 Business Days) after
expiry of the 15 Business Day period in clause 63.1; and
63.5.2
the period specified in the Subcontract, after the Subcontractor
takes any other actions and complies with any other obligations
required which are stated in the Subcontract to be pre-conditions
to payment before any payment is payable.
63.6
Unless the parties agree on another method, all payments to the
Subcontractor must be made by electronic funds transfer to the
Subcontractor's account specified in the relevant Payment Claim Worksheet
provided by the Subcontractor.
63.7
Payment by the Contractor is not evidence that the Contractor accepts the
value, quantity or quality of work or that the Subcontractor has complied
with the Subcontract or that the Subcontractor has any particular
entitlement, and is payment on account only. Payments made by the
Contractor do not affect or prejudice any of the Contractor's rights, powers,
remedies or defences and are subject to review pursuant to the provisions
of clauses 73 to 75 or otherwise as permitted by the Subcontract (including
by litigation).
Completion Amount
The Completion Amount provides an incentive; the earlier the Subcontractor achieves
defect-free Completion of the whole of the Subcontract Works, the earlier the payment
occurs.
65.
64.1
The Completion Amount, if one is specified in Contract Information item 45,
becomes an entitlement of the Subcontractor on Completion of the whole of
the Subcontract Works. The Subcontractor may then claim it in the next
Subcontract Payment Claim, subject to the Contractor's right to set-off
under clause 67.
64.2
The Contractor will retain the Completion Amount from Subcontract
Payment Claims when the Value Completed exceeds fifty percent (50%) of
the Subcontract Price.
64.3
The Contractor will own any interest earned on the monies retained for the
Completion Amount.
Final payment
This clause contains provisions which apply to the Subcontractor's Final Payment Claim
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and the Contractor's Final Subcontract Payment Schedule in addition to those in clauses 62
and 63.
65.1
The Subcontractor must submit a Final Payment Claim within 12 weeks
after achieving Completion of the whole of the Subcontract Works. The Final
Payment Claim must include any Subcontractor's Claim not previously
claimed in a Payment Claim, and which is then permitted under clauses 62
and 63 of the Subcontract, being a Subcontractor's Claim agreed to by the
Contractor or if not agreed, having been determined in accordance with the
Subcontract.
65.2
Within 15 Business Days of receiving the Final Payment Claim (or, if the
Subcontractor has not submitted a Final Payment Claim, within 13 weeks
after the Subcontractor has achieved Completion of the whole of the
Subcontract Works), the Contractor must give the Subcontractor a Final
Subcontract Payment Schedule stating the amount payable by one party to
the other and where the Subcontractor has submitted a Final Payment
Claim, complying with the relevant provisions of clause 63.
65.3
Any payments by the Subcontractor to the Contractor in accordance with
the Final Subcontract Payment Schedule must be made within a further 28
days after it is issued.
Refer to clause 63 for provisions covering payments by the Contractor to the Subcontractor.
65.4
Any other Subcontractor's Claim not previously brought which the
Subcontractor is then entitled under the Subcontract to bring must be made
(separate from the Final Payment Claim) within 12 weeks after achieving
Completion of the whole of the Subcontract Works. Otherwise it is barred. If
the Contractor agrees to a Subcontractor's Claim involving money under
this clause 65.4, the Contractor will make payment within 28 days of such
agreement or of it being determined in accordance with the Contract.
65.5
The issue of the Final Subcontract Payment Schedule is conclusive
evidence that all necessary increases to the Subcontract Price or to any
other entitlement of the Subcontractor have been made, except for those
required by:
65.6
66.
65.5.1
arithmetical error; or
65.5.2
valuation of Variations under clause 52 relating to a
Subcontractor's Claim made in accordance with clause 65.4; and
65.5.3
resolution under clauses 72 to 75 (as applicable) of:
(a)
any Subcontractor's Claim (other than Variations valued
under clause 52) made in accordance with clause 65.4; or
(b)
any other Issue raised which may properly be raised in
accordance with the Subcontract during a period of 28 days
following the issue of the Final Subcontract Payment
Schedule.
The Subcontractor's liability under the Subcontract or otherwise is not
affected by the issue of the Final Subcontract Payment Schedule. The
Subcontractor's liability continues until any limitation period under statute
expires.
Interest on late payments
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66.1
67.
A party which fails to make a payment by the time or by the last day of the
period prescribed by the Subcontract must pay interest to the other party, at
the rate in Subcontract Information item 50, for the period the payment is
late.
Set-off
67.1
If the Contractor claims a sum under or arising out of the Subcontract, either
in circumstances when Subcontractor's Insolvency applies, or in relation to
a matter for which the Principal has claimed a sum under the Contract, then
it may:
67.1.1
withhold, deduct or set-off the claimed sum against any sum to
which the Subcontractor is otherwise entitled under or arising out
of the Subcontract; and
67.1.2
make a demand against the Undertakings, cash security or
retention money provided under clause 37 for any amount of the
claimed sum in excess of the sum to which the Subcontractor is
then entitled.
Completion
68.
Early use
68.1
Before the Subcontractor achieves Completion, the Principal (and anyone
authorised by the Principal) may use or occupy (but is not obligated to) any
part of the Subcontract Works which is sufficiently complete, or the whole of
the Subcontract Works and then:
68.1.1
the Subcontractor's responsibilities are not affected, except if they
are reduced under clause 29.4 or if the Principal or the Contractor
(or anyone authorised by the Principal or the Contractor to use or
occupy any part of the Subcontract Works) causes the
Subcontractor's work to be hindered; and
68.1.2
the Principal or the Contractor (as applicable) becomes
responsible for any additional insurance required.
68.2
If the Principal or the Contractor requires to use or occupy any part or the
whole of the Subcontract Works before the Subcontractor achieves
Completion, as provided in clause 68.1, the Contractor must give not less
than 21 days notice in writing to the Subcontractor that the Principal will be
using or occupying a part or parts, or the whole of the Subcontract Works
and must specify those parts, or that the whole of the Subcontract Works is,
to be so used or occupied.
68.3
The Subcontractor must do everything necessary to provide to the
Contractor promptly, but in any event no later than 14 days after receipt of
the notice in clause 68.2, all documents and other things relevant to the
parts to be used or occupied as are listed in the second paragraph of the
definition of Completion, and to otherwise provide full assistance and
cooperation to the Principal or the Contractor (as applicable) (and anyone
authorised by the Principal or the Contractor (as applicable)) in the use and
occupation of the Subcontract Works.
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69.
Completion
The Subcontract requires defect-free Completion. There is no concept of 'practical
completion" applying to the Subcontract. Completion applies to any Subcontract Milestones
as well as to the whole of the Subcontract Works.
70.
69.1
The Subcontractor must achieve Completion by the Contractual Completion
Date.
69.2
When the parties agree that Completion has been achieved, each party
acting reasonably, the Contractor must give the Subcontractor a notice
stating the Actual Completion Date.
Close-out workshop
The close-out workshop is an opportunity to review the management of the Subcontract. It
is also used to collect and provide feedback to the parties to enable them to improve the
overall communication and management process for any possible future contracts. The
purpose of the workshop is to provide a realistic assessment of the performance by the
workshop participants.
71.
70.1
If required by the Contractor, the Subcontractor must attend a close-out
workshop convened by the Principal within 21 days after achieving
Completion of the whole of the Works. The structure and processes that
apply to evaluation and monitoring meetings under clause 6 apply to the
close-out workshop.
70.2
Each party and any others who participate in the workshop must meet their
own costs for attendance at the close-out workshop, and the parties to the
Contract will share equally the other costs.
After Completion
71.1
At any time after Completion:
71.1.1
the Contractor may instruct the Subcontractor to make good
Defects within the time specified in a Defect Notice
71.1.2
if the Subcontractor fails to make good the Defects in the time
specified in the Defect Notice, the provisions of clauses 50.3 and
50.4 will apply; and
71.1.3
the Contractor may instruct a Variation in connection with any
Defect instead of requiring the Defect to be made good under
clause 71.1.1.
71.2
This clause 71 does not reduce the Subcontractor's liability, whether arising
under the Contract or otherwise. The Subcontractor's liability continues until
any limitation period under statute expires.
71.3
This clause 71 does not affect the Contractor's rights under clause 51.
CLAIM AND ISSUE RESOLUTION
This section provides a step-by-step procedure for handling Subcontractor's Claims and Issues.
Generally, the aim of the Subcontract is for the parties to resolve matters through discussions as
soon as possible and within the times specified. Further steps are only needed if the parties have
been unable to resolve matters between themselves.
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Claim resolution
72.
Subcontractor's Claims
72.1
Any Subcontractor's Claim not made, assessed and determined under
another provision of the Subcontract must be made, assessed and
determined under this clause 72 (unless determination of the
Subcontractor's Claim is regulated by a separate procedure under any
applicable legislation).
These clauses deal with Subcontractor's Claims made, assessed and determined
under another provision of the Subcontract:
41 Site Conditions
42 Ambiguities (In pad)
44 Adopting Contractor's Documents
49 Testing
51 Acceptance with Defects not made good
53 Changes in Statutory Requirements
52 Variations (in part)
54 Extensions of time
55 Delay costs
61 Prepayment
62 Payment Claims
64 Completion Amount
65 Final payment (in part).
72.2
Where the Subcontractor is entitled to make a Subcontractor's Claim under
a provision of the Subcontract including under clause 65.4, which does not
specify a time for making the Subcontractor's Claim or otherwise in relation
to the Subcontract or the Subcontract Works, then the Subcontractor's
Claim must be made within 21 days from:
72.2.1
the start of the event giving rise to it; or
72.2.2
the time the event should have become known to the
Subcontractor, with reasonable diligence on its part.
72.3
If the Subcontractor fails to make a Subcontractor's Claim within the
specified time, the Subcontractor is not entitled to interest on any amount
involved in the Subcontractor's Claim for the period before the
Subcontractor made the Subcontractor's Claim. However, any
Subcontractor's Claim not made within the times specified in clause 65 is
barred.
72.4
Each Subcontractor's Claim must include information sufficient for the
Contractor to assess the Subcontractor's Claim, without the need for further
information. This includes the factual and legal basis, detailed quantification
and responses by the Subcontractor to the questions set out in paragraphs
1.1 and 1.2 of the Schedule 6 (Expert Determination Procedure).
72.5
The Contractor must assess a Subcontractor's Claim, and reach agreement
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about it with the Subcontractor or reject it, within 21 days after receiving the
Subcontractor's Claim with all information required by clause 72.4.
72.6
If the Contractor agrees to a Subcontractor's Claim involving money, the
Subcontractor may claim the agreed amount only by including it in a Payment
Claim under clause 62.9 or 65.1 (excluding a Subcontractor's Claim made
under clause 65.4, for which the Contractor will make payment within 28
days of such agreement or of it being determined in accordance with the
Subcontract).
72.7
If a Subcontractor's Claim is rejected or not agreed it will be an Unresolved
Subcontractor's Claim, and then the Subcontractor may notify the
Contractor that it disputes the rejection or failure to agree as an Issue, within
7 days after the end of the 21 day period referred to in clause 72.5.
72.8
The provisions of clauses 72.2 to 72.7 (where no alternative provision
applies or these provisions are not consistent with the context) apply
generally to all Subcontractor's Claims whether made under clause 72 or
under another provision of the Subcontract.
Issue resolution
73.
Notification of Issue
73.1
The Subcontractor may dispute an assessment, determination or instruction
of the Contractor, or an Unresolved Subcontractor's Claim, by giving notice
to the Contractor (copied to the Contractor's senior executive named in
Subcontract Information item 7A) of an Issue within 21 days after the
assessment, determination or instruction, or within 7 days as provided in
clause 72.7 for an Unresolved Claim.
73.2
Either party may give notice to the other (copied to that party's senior
executive) of an Issue (excluding an Issue referred to in clause 73.1, but
including a claim by the Contractor) about the meaning or effect of the
Subcontract, or about any matter arising under, out of or in any way
connected with the Subcontract, within 21 days after becoming aware of the
Issue.
73.3
The parties must follow the Issue resolution procedure in clauses 73, 74 and
75 before either commences proceedings or takes similar action.
73.4
Subject to clauses 65 and 72, if the Contractor or the Subcontractor (as
applicable) gives notice of an Issue but not within the time provided by
clauses 73.1 and 73.2, (in the case of the Subcontractor) or within the time
provided by the clause 73.2 (in the case of the Contractor) and it is resolved
in favour of the party giving notice of the Issue, that party will not be entitled
to interest on any amount involved in the Issue for the period before notice
of the Issue was given.
73.5
The Contractor is not liable to pay damages (whether in contract, for
negligence or otherwise) for making an incorrect assessment, determination
or instruction.
However, the Subcontractor will be entitled to the amount determined by an expert
or the court, with simple interest as referred to in clause 66, from the date the expert
or the court decides that the amount should have been paid.
73.6
The Contractor's assessments, determinations or instructions may, subject
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to this Contract, be reviewed and revised in any Expert Determination or
court proceedings which might follow this Issue resolution procedure.
74.
75.
73.7
This Issue resolution procedure does not prevent a party from seeking an
urgent declaration or injunction from a court.
73.8
Notwithstanding any other provision in the Subcontract, if an Issue relates to
a Claim or a potential Claim then the Contractor is not obliged to proceed
with any procedure in clause 73, 74 or 75 for the resolution of the Issue until
the Subcontractor has fully particularised the Claim by providing the
information required in respect of a Claim under clause 72.4 (that is,
information establishing the factual and legal basis of the Claim, detailed
quantification and responses by the Subcontractor to the questions set out
in paragraphs 1.1 and 1.2 of Schedule 6).
Resolution by senior executives
74.1
If a party gives notice of an Issue under clause 73, the senior executives
named in Subcontract Information items 7A and 10 must promptly confer to
try to resolve the Issue.
74.2
A party is not entitled to refer an Issue to Expert Determination until 14 days
after giving notice of an Issue under clause 73.
74.3
A party may only refer an Issue to Expert Determination by giving notice to
the other party (specifying the Issue to be decided and copied to that party's
senior executive) within the number of days specified in Subcontract
Information item 53 or if no such period is specified, then within 21 days of
becoming entitled to under clause 74.2.
74.4
An Issue for which notice has not been given within the time limited by and
in the form prescribed by clause 74.3 is barred from Expert Determination or
any other action or proceedings (including court proceedings).
Expert Determination
75.1
If issues have been referred to Expert Determination under the Contract
which involve Issues referred to Expert Determination under the
Subcontract, and if the Principal requires or permits it:
75.1.1
the Subcontractor is to be added as a party to the Expert
Determination under the Contract;
75.1.2
the Expert Determination under the Subcontract is not to proceed;
75.1.3
the Contractor and Subcontractor must bear equally a proportion
of the costs and expenses of the Expert Determination under the
Contract commensurate with the extent to which the Expert’s work
relates to the issues arising under the Subcontract; and
75.2
If required by the Principal or the Contractor, before the procedure for
Expert Determination is commenced, or at any subsequent stage, the
Subcontractor and the Contractor must place sufficient funds in a trust
account or provide other adequate security for the payment of the fees and
out of pocket expenses of the Expert for the determination.
75.3
If an Issue is to be referred to Expert Determination under clause 74, and
clause 75.1.2 does not apply, the parties must endeavour to agree on the
Expert to be engaged. If they cannot agree within 14 days of the receipt of a
Page 58 of 69
notice under clause 74.3, the Expert will be nominated (on the application of
either party) by the person named in Subcontract Information item 55. That
person must not nominate:
75.4
75.3.1
an employee of the Contractor or the Subcontractor;
75.3.2
a person who has been connected with the Subcontract Works or
the Subcontract; or
75.3.3
a person who the Contractor and the Subcontractor have not been
able to agree on.
When the person to be the Expert has been agreed or nominated, the
Contractor, on behalf of both parties, must engage the Expert by letter of
engagement (copied to the Subcontractor) setting out:
75.4.1
the Issues referred to the Expert for determination;
75.4.2
the Expert's fees;
75.4.3
the procedure for Expert Determination in Schedule 6 (Expert
Determination Procedure); and
75.4.4
any other matters which are relevant to the engagement.
75.5
The Contractor and the Subcontractor must share equally the fees and outof-pocket expenses of the Expert for the determination, and bear their own
costs.
75.6
If required by either party, before the procedure for Expert Determination is
commenced, or at any subsequent stage, each party must place sufficient
funds in a trust account or provide other adequate security for the payment
of the fees and out of pocket expenses of the Expert for the determination.
75.7
The procedure for Expert Determination is set out in Schedule 6 (Expert
Determination Procedure).
75.8
In answer to any Issue referred to the Expert by a party, the other party may
raise any defence, set-off or cross-claim.
75.9
If the Expert determines that one party must pay the other an aggregated
amount exceeding the amount in Subcontract Information item 56
(calculating the amount without including interest on it, and after allowing for
set-offs), or if the Expert's determination involves a finding which does not
involve paying a sum of money, or if the Expert fails (without the agreement
of both parties) to follow the procedure set out in Schedule 6 or exhibits
bias, then either party may commence litigation in respect of the amount
referred to above (which amount exceeds the amount in Subcontract
Information Item 56) or the finding which does not involve paying a sum of
money, as applicable, at any time before the expiry of 42 days after the
Expert has issued a determination, but no later .
75.10 Unless a party has a right to commence litigation under clause 75.8:
75.10.1 the parties must treat each determination of the Expert as final and
binding and give effect to it; and
75.10.2 if the Expert determines that one party owes the other money, that
party must pay the money within 21 days.
Page 59 of 69
75.11 The representative of the Contractor for all of the purposes of this clause 75
is the person specified in Subcontract Information item 54. This person (and
his/her address) may differ from the person (and his/her address) for the
giving of notices to the Contractor, as specified in clause 30.1.
76.
Parties to perform the Subcontract
During Subcontractor's Claim and Issue resolution procedures under clauses 72 to 75, the parties
must continue to perform their obligations under the Subcontract.
TERMINATION
77.
Termination for Subcontractor's Default or Insolvency
77.1
The Contractor may terminate the Subcontractor's employment under the
Subcontract for Subcontractor's Default or Subcontractor's Insolvency by
giving notice, as set out in this clause 77.
77.2
In the case of Subcontractor's Default, the Contractor must first give notice
to the Subcontractor that it has 4 days after the notice is given to the
Subcontractor to remedy the Subcontractor's Default.
77.3
If the Subcontractor fails to give the Contractor a notice containing clear
evidence that it has remedied a Subcontractor's Default, or fails to propose
steps reasonably acceptable to the Contractor to remedy the
Subcontractor's Default, the Contractor may give the Subcontractor a notice
terminating its employment under the Contract.
77.4
Nothing in this clause 77 affects or negates the Contractor's common law
rights to terminate or for damages.
If a right to terminate exists at common law, a notice to terminate at common law
may be given without first giving notice to remedy a default.
77.5
In the case of Subcontractor's Insolvency, the Contractor may give the
Subcontractor a notice terminating its employment under the Subcontract.
77.6
If the Contractor terminates the Subcontractor's employment under this
clause 77, it may at its sole discretion, employ others to complete the
Subcontract Works and all the following will then apply:
77.6.1
The Subcontractor must leave the Site as soon as reasonably
practicable and remove all Temporary Work it has brought onto the
Site, but must leave any Temporary Work required by the
Contractor to have the Subcontract Works completed.
77.6.2
The Subcontractor must assign to the Contractor the
Subcontractor's rights and benefits in all its contracts concerning
the Subcontract Works, warranties and unconditional
undertakings, cash security, bank guarantees, insurance bonds,
other security of a similar nature or purpose and retention money
held by the Subcontractor, with effect from the date of termination
of its employment under the Subcontract.
77.6.3
The Subcontractor must consent to a novation to the Contractor or
its nominee of all Sub-subcontracts and its other contracts
concerning the Subcontract Works, as required by the Contractor
Page 60 of 69
and must procure at the time of entering into each Sub-subcontract
and other contracts, the consent in writing of all of its Subsubcontractors, Suppliers and Consultants to the novation. The
Contractor may at any time make payments and may deduct,
withhold or set-off any amounts to be paid under the novated
contracts from amounts otherwise payable to the Subcontractor or
from any Undertakings given on the Contractor's behalf.
78.
77.6.4
The Subcontractor must do everything and sign all documents
necessary to give effect to this clause 77, and it irrevocably
appoints the Contractor as its attorney to do this in its name if it
fails to do so.
77.6.5
If, on Completion, the cost to the Contractor of completing the
Subcontract Works exceeds the amount that would have been
paid to the Subcontractor to complete them, taking into account
any Prepayments, then the difference will be a debt due by the
Subcontractor to the Contractor.
77.6.6
The Contractor may make provisional assessments of the amounts
payable to the Contractor under clause 77.6.5 and may demand
them under the Undertakings.
Termination for Contractor's convenience
78.1
The Contractor may terminate the Subcontract, by giving notice with effect
from the date stated in the notice, for its convenience and without the need
to give reasons.
78.2
The Subcontractor must comply with any instructions of the Contractor to
wind down and stop work.
78.3
The Subcontractor must leave the Site by the date stated in the termination
notice and remove all Temporary Work it has brought onto the Site for
constructing the Subcontract Works, except for those items identified in the
termination notice as to be retained on the Site.
78.4
After termination under clause 78.1, subject to its rights under the
Subcontract, including clause 67, the Contractor must pay the
Subcontractor:
78.4.1
the Value Completed for all work carried out (as determined under
clauses 62 and 63) to the date the termination notice takes effect,
after taking into account previous payments and any
Prepayments, and any deductions, retentions or set-offs under
clauses 63, 64 or 67;
78.4.2
the cost of Materials reasonably ordered by the Subcontractor for
the Subcontract Works which it is legally liable to accept, but only
if on payment these unfixed Materials become the property of the
Contractor, free of any Encumbrance;
78.4.3
the reasonable, direct costs of removal of Temporary Work and
other things from the Site incurred by the Subcontractor, but only if
the Subcontractor complies with a strict duty to mitigate costs;
78.4.4
an amount of 2% of the unpaid portion (after taking into account
Page 61 of 69
the amount payable under clause 78.4.1) of the Subcontract Price;
and
78.4.5
79.
80.
costs reasonably incurred by the Subcontractor in the expectation
of completing the Subcontract Works and not included in any other
payment by the Contractor.
78.5
The Contractor must return the Undertakings, cash security or retention
money, subject to its rights under the Subcontract.
78.6
The payments referred to in clause 78.4 are full compensation for
termination under this clause 78, and the Subcontractor has no
Subcontractor's Claim for damages or other entitlement whether under the
Subcontract or otherwise.
78.7
The Subcontractor must, wherever possible, include in all Sub-subcontracts
and other contracts an equivalent provision to this clause 78.
Termination for Contractor's default
79.1
If the Contractor fails to pay the Subcontractor any amount in accordance
with the Subcontract which is not in dispute, or commits any fundamental
breach of the Subcontract, then the Subcontractor may give notice requiring
the Contractor to remedy the default within 21 days after receiving the
notice.
79.2
If the Contractor fails to remedy the default, or fails to propose steps
reasonably acceptable to the Subcontractor to do so, the Subcontractor may
issue a notice terminating the Subcontract and clauses 78.3 to 78.6 will then
apply and the Contractor must pay the Subcontractor the applicable
amounts referred to in clause 78.4 as its sole remedy and in full
compensation for the Contractor's breach.
79.3
In the case of Contractor's Insolvency, the Subcontractor may terminate the
Subcontract by giving notice to the Contractor, and clauses 78.4 to 78.6
apply.
79.4
If the Subcontractor terminates the Subcontract, it must leave the Site as
soon as reasonably practicable and remove all Temporary Work it has
brought onto the Site for constructing the Subcontract Works.
79.5
The Subcontractor has no other right to terminate the Subcontract, under
the common law or otherwise.
Termination of Contract
80.1
If the Contract is terminated, then the Subcontract is deemed to have been
terminated, with effect on the date of termination of the Contract.
80.2
If the Contractor's employment under the Contract is terminated, then the
Subcontractor's employment under the Subcontract is deemed to have been
terminated, with effect on the date of termination of the Contractor's
employment under the Contract.
80.3
In either case, the Contractor must promptly give the Subcontractor a copy
of the relevant notice of termination given under the Contract.
80.4
If this action is taken for reason of Contractor's Default or Contractor's
Insolvency under the Contract, then:
Page 62 of 69
81.
80.4.1
the Subcontractor must accept a novation of this Subcontract to
the Principal, if required by the Principal; and
80.4.2
clauses 78.4 to 78.6 apply.
Termination notices
Notices under clauses 77, 78 and 79 must be in writing and be delivered by hand,
registered post or equivalent, or facsimile.
MEANINGS
82.
83.
Interpretation
82.1
Words in the singular must be interpreted to include the plural, and vice
versa.
82.2
No legal interpretation applies to the disadvantage of any party on the basis
that the party provided the Contract Documents, or any part of them.
82.3
Notes are provided to guide the parties and do not form part of the
Subcontract.
82.4
Attachments 1, 2 and 3 do not form part of the Subcontract.
Definitions
Some words and phrases have special meanings in the Contract. In some cases, the
defined meaning is different from the meaning that the word or phrase might have in
ordinary usage, or it might include conditions that don't normally apply. In order to
understand the Contract, you need to take these special meanings into account.
All defined words and phrases have initial capitals (except for 'day' and 'end users') and are
in italics in this Subcontract unless they are one of the following 12 basic terms, which
appear too often for italics to be used:

consultant

Contract

Contractor

Date of Subcontract

day

Principal

Site

Subcontract

Subcontractor

Subcontract Works

Sub-subcontractor

Supplier
Wherever the following words and phrases are used in this Subcontract with initial capitals
(except for 'day' and 'end users'), they have the special meanings set out below them in this
clause 83 unless the context requires otherwise.
Meanings of words and phrases
Acceleration Notice
A written instruction under clause 56.1 by the Contractor to the Subcontractor to
accelerate progress of the Subcontract Works, titled "Acceleration Notice ".
Page 63 of 69
Actual Completion Date
The date on which Completion of the Subcontract Works or of a Subcontract
Milestone (as applicable) is achieved by the Subcontractor.
Business Day
Any day other than a Saturday, Sunday, public holiday in South Australia, or 27,
28, 29, 30 or 31 December.
Certificates of Compliance
Certificates in the form of Schedule 4, as referred to in clause 63.5.2.
Claimed Amount
The amount claimed by the Subcontractor in a Payment Claim.
Completion
The state of the Subcontract Works or a Subcontract Milestone (as applicable)
being complete, except for Defects not known.
This includes, without limitation:
1.
the supply to the Contractor of all Schedule 1 Subcontractor's Warranties,
operating and maintenance manuals, licences, access codes, as-built
drawings or work-as-executed drawings;
2.
certificates, authorisations, approvals and consents from statutory
authorities and service providers;
3.
those certificates required for the occupation, use and maintenance of the
Subcontract Works; and
4.
all other documents, Testing, training and other requirements specified in
the Subcontract.
Completion Amount
An amount stated in Subcontract Information item 45 and included in the
Subcontract Price, which under clause 64 may be claimed by the Subcontractor
after the Actual Completion Date of the whole of the Subcontract Works.
Completion Undertaking
The Undertaking required under clause 37.1, for the percentage of the Subcontract
Price (at the Date of Subcontract) specified in Subcontract Information item 33.
Conformance Records
Records which show conformance by the Subcontractor with particular
requirements of the Subcontract, as provided in the Contract and as referred to in
clause 63.
Consultant
A consultant engaged by the Subcontractor to design parts of the Subcontract
Works or to provide other professional services. It includes a consultant whose
Subcontract with the Contractor is novated to one with the Subcontractor.
Contract
The agreement between the Contractor and the Principal, as specified in
Subcontract Information item 3B.
Contractor
The party named as such in Subcontract Information item 4, and including its
Page 64 of 69
successors and permitted assigns.
Contractor's Authorised Person
The person appointed to act for the Contractor in terms of clause 2, as named in
Subcontract Information item 5.
Contractor's Documents
The design and other documents prepared by the Contractor for the Subcontract
and provided to the Subcontractor at the Date of Subcontract and included in the
Subcontract Documents, and any modified or further such documents later
provided by the Contractor to the Subcontractor for the Subcontract.
Contractual Completion Date
The date (or the last day of the period) specified in Subcontract Information item 13
on, or by which, the Subcontractor must achieve Completion of the Subcontract
Works or of a Subcontract Milestone (as applicable), as may be adjusted under
clauses 41, 52 and 54.
Data
Drawings, sketches, specifications, digital records and computer software and all
other data and information relating to the Subcontract.
Date of Subcontract
The date of the Letter of Award or if no Letter of Award is issued by the Contractor
to the Subcontractor, the date the Subcontract Agreement is signed by the
Contractor after the Subcontractor has signed it.
Day
A calendar day, including all Business Days and non-Business Days.
Defect
Includes an error, omission, shrinkage, blemish in appearance or other fault in the
Works or which affects the Works, which results from a failure of the Subcontractor
to comply with the Subcontract.
Defect Notice
A notice issued by the Contractor under clause 50.2 or 71.1 instructing that
specified Defects be made good within a given period.
Design
Design of the Subcontract Works to be carried out by the Subcontractor, including
the completion of any of the Contractor's design work which is described in the
Contractor's Documents, to the extent specified in Subcontract Information item 37;
Designed, the Design, and other derivatives of Design have a corresponding
meaning.
Encumbrance
Any mortgage, charge, lien, title retention, trust, power or other encumbrance.
End users
Persons to be involved in using or occupying any part of the Subcontract Works, as
referred to in clauses 6.2 and 45.2.
Excepted Risks
Any of the following:
Page 65 of 69
1.
any negligent act or omission of the Contractor, the Contractor's Authorised
Person or the employees, consultants or agents of the Contractor;
2.
any risk specifically excepted in the Subcontract;
3.
war, invasion, act of foreign enemies, hostilities, (whether war be declared
or not), act of terrorism, civil war, rebellion, revolution Contractor is
maintaining complete records to account for the cash. The records are
available to the relevant Subcontractors and the Principal on request.,
insurrection or military or usurped power, martial law or confiscation by
order of any Government or public authority; or
4.
ionising radiations or contamination by radioactivity from any nuclear fuel or
from any nuclear waste from the combustion of nuclear fuel not caused by
the Subcontractor or the Subcontractor's employees or agents.
Expert
A person engaged to determine Issues under clause 75.
Expert Determination
The process of determination of an Issue by an Expert, under clause 75 and the
procedure in Schedule 6 (Expert Determination Procedure).
Fault
Ambiguity, inconsistency, discrepancy, omission, error or other fault.
Final Payment Claim
A Payment Claim given by the Subcontractor to the Contractor under clause 65.1.
Final Subcontract Payment Schedule
A Payment Schedule given by the Contractor to the Subcontractor under clause
65.2.
Further Site Information
Site information obtained after the Date of Subcontract by the Subcontractor.
Intellectual Property Rights Includes copyright, patent right, registered design,
trade mark or name and other protected rights.
Issue
Any issue, dispute or difference raised by either party under clause 73.
Letter of Award
A letter from the Contractor to the Subcontractor awarding the Subcontract to the
Subcontractor as referred to in clause 7.
Materials
Includes materials, plant, equipment and other goods.
Milestone Payment
A payment to the Subcontractor on Completion of a Subcontract Milestone.
Payment Claim
A Subcontractor's Claim for payment made by the Subcontractor to the
Contractor under clauses 62 or 65.
Post-Completion Undertaking
The Undertaking required under clause 37.1, for the percentage of the Subcontract
Page 66 of 69
Price (at the Date of Subcontract) specified in Subcontract Information item 34.
Prepayment
The amount to be advanced to the Subcontractor in accordance with clause 61 and
Subcontract Information item 44.
Principal
The entity named as such in Subcontract Information item 3C.
Progress Payment
A payment by the Contractor in response to a Payment Claim, on account of the
Subcontract Price.
Provisional Sum
A sum included in the Subcontract Price and identified as a provisional, monetary,
prime cost, contingency or other such sum or allowance for the work specified
in the Subcontract against that sum or allowance.
Provisional Quantity
The quantity of an item of work which is specified in the Subcontract, but the
quantity of which or whether that item of work will actually be required is not known
definitively at the Date of Subcontract.
Reference Subcontract Documents
The documents expressly referred to as such in Subcontract Information item 17
and forming part of the Contract.
Schedule of Rates
Any schedule in the Subcontract stated to be a Schedule of Rates, and which
shows rates payable for carrying out items of work described in the schedule.
Scheduled Amount
The amount of payment (if any) stated in a Payment Schedule, that the Contractor
proposes to make in relation to a Payment Claim as referred to in clause 63.2.2.
Scheduled Progress
The rate of progress to be achieved by the Subcontractor in Designing and
constructing the Subcontract Works, such that the Subcontractor is proceeding
with due expedition and without undue delay (other than a delay for which the
Contractual Completion Date is adjusted under the Subcontract), so that it will (or
is likely to) complete the Subcontract Works and all Subcontract Milestones by
theit respective Contractual Completion Dates.
Site
The lands and other places to be made available by the Contractor to the
Subcontractor for the purpose of executing the Subcontract Works, and
including any existing buildings, services or other improvements, as specified in
Subcontract Information item 2.
Site Conditions
Any physical conditions of the Site (including sub-surface conditions, but excluding
weather conditions or physical conditions which are a consequence of weather
conditions) encountered in the execution of the Subcontract Works.
Statutory Requirements
Page 67 of 69
The laws relating to the Subcontract Works, the Site, or the environment or the
lawful requirements of any authority or provider of services having jurisdiction over
the Subcontract Works, the Site, or anyone or anything connected with the
Subcontract Works, the Site or otherwise relating to the Subcontract.
Subcontract
An agreement constituted by the Subcontract Documents.
Subcontract Agreement
An agreement in the form annexed to the Subcontract.
Subcontract Documents
All the documents listed or referred to in clause 7.1.
Subcontract Information
The document described as such in the Subcontract Documents, which sets out
information for the purposes of the Subcontract.
Subcontract Milestone
A part of the Subcontract Works specified as such in Subcontract Information item
13.
Subcontract Payment Schedule
A payment schedule containing the Contractor's assessment of a Payment Claim
and stating the amount the Contractor proposes to pay as the Scheduled Amount,
as referred to in clause 63.
Subcontract Price
The amount stated as such in Subcontract Information item 43, subject to
adjustment in accordance with the Subcontract.
Subcontract Program
The program described in clause 25.
Subcontract Works
The works to be Designed and constructed by the Subcontractor, as referred to in
clause 10, including all works and items of the type referred to in clause 10.1 and
Variations, but excluding Temporary Work; it applies to the Subcontract Works as
a whole and also to any part of the Subcontract Works unless stated otherwise
or the context requires otherwise.
Subcontractor
The entity named as that party in Subcontract Information item 8. It includes its
successors and permitted assigns
Subcontractor’s Authorised Person
The person appointed to act for the Subcontractor under clause 2, including as
named in Subcontract Information item 9.
Subcontractor's Claim
A claimed entitlement of the Subcontractor under or arising out of or connected
with the Subcontract, in tort, in equity, under any statute, or otherwise. It includes a
claimed entitlement to an extension of time or for breach of Subcontract by the
Contractor.
Subcontractor’s Default
Page 68 of 69
A substantial breach of the Subcontract by the Subcontractor, including, without
limitation, any of the following:
1.
abandoning the carrying out of the Subcontract Works;
2.
suspending progress of the carrying out of the Subcontract Works in whole
or part without the written agreement of the Contractor, except for
suspension under clause 58;
3.
significantly failing to achieve Scheduled Progress;
4.
failing to comply with an instruction in writing or confirmed in writing by the
Contractor;
5.
failing to carry out the Subcontract Works with professional skill, care and
competence;
6.
failing to maintain any registration or licence required by law to carry on
activities required under the Subcontract;
7.
failing to provide security as required under clause 37 of the Subcontract; or
8.
failing to effect and maintain insurance policies as required under the
Subcontract.
Subcontractor's Documents Both:
1.
drawings, specifications, calculations and other documents and information,
meeting the requirements of clause 43, which the Subcontractor must
produce to Design and construct the Subcontract Works in accordance with
the Subcontract; and
2.
documents which become Subcontractor's Documents under the
Subcontract, including Contractor's Documents checked, accepted and
adopted under clause 44.
Subcontractor's Insolvency
Any of the following applying to the Subcontractor:
1.
insolvency;
2.
the Subcontractor indicates it does not have the resources to perform the
Subcontract;
3.
an application for winding up is made which is not stayed within 14 days;
4.
a winding-up order is made;
5.
a controller, administrator, receiver, receiver and manager, provisional
liquidator, or liquidator is appointed;
6.
a mortgagee enters into possession of any property of the Subcontractor;
7.
notice is given of a meeting of creditors for the purposes of a deed of
arrangement; or
10.
any actions having a similar effect are taken.
Subcontractor's Margin
An amount or proportion added for profit and additional overhead costs (including
administration, supervision, establishment and attendance costs) incurred solely as
a result of a Variation, but not including any overhead costs relating to delay,
disruption or interference caused by the Variation.
Sub-subcontract
Page 69 of 69
An agreement between the Subcontractor and its Sub-subcontractor or a Supplier.
Sub-subcontractor
An entity engaged by the Subcontractor to carry out part of the Subcontract Works
Works or Temporary Work, or both.
Supplier
An entity engaged by the Subcontractor to supply part of the Subcontract Works or
Temporary Work, or both.
Temporary Work
Temporary structures, amenities, physical services and other work, including
Materials, plant and equipment used in or in relation to the carrying out of the
Subcontract Works but not forming part of the Subcontract Works.
Test
Examine, inspect, measure, prove and trial, including opening up of any part
covered up, if necessary; Testing and other derivatives of Test have a
corresponding meaning.
Undertaking
An unconditional undertaking to pay on demand, in the relevant form of Schedule 2
(Undertaking), provided as security by the Subcontractor.
Unresolved Subcontractor's Claim
A Subcontractor's Claim rejected or not agreed under clause 72.7.
Value Completed
The value of work (including Design, if applicable) carried out by the Subcontractor
and incorporated into the Subcontract Works, as referred to in clause 62.
Valuer
The entity engaged to determine time and cost matters under the Contract.
Variation
Any change to the Subcontract Works including additions, increases, omissions
and reductions to and from the Subcontract Works, but not including such changes
or otherwise in respect of the development by the Subcontractor of Design
(including without limitation development of shop drawings and other
Subcontractor's Documents) in accordance with the requirements of the
Subcontract, and not including omissions of the type referred to in clause 10.1.3.
Page 1 of 13
SUBCONTRACT AGREEMENT
Refer to clause 7 of the Subcontract
Definition
Subcontract title:
Subcontract number:
Dated:
The Contractor:
The Subcontractor:
This Subcontract
»……………………………………….
»……………………………………….
»……………………………………….
is made between
»……………………………………….
ABN»………………………………….
and
»……………………………………….
ABN»………………………………….
Agreement
The parties agree:
1.
The Subcontractor must:
1.1 construct the Subcontract Works to Completion in accordance with the
Subcontract;
1.2 perform the Design obligations specified in the Contract; and
1.3 perform and observe all its other obligations under the Subcontract.
2
The Contractor must:
2.1 pay the Subcontractor the Subcontract Price (on the basis of a lump sum,
schedule of rates or a combination of these as specified in the Subcontract) for
its performance, in accordance with and subject to the Subcontract; and
2.2 perform and observe all its other obligations under the Subcontract.
3
The Subcontract is defined in the attached Subcontract.
4
The attached Subcontract Information forms part of the Subcontract.
5
Words in this Subcontract Agreement have the meanings given in the Subcontract.
Executed as an agreement on the date stated above
Executed for and on behalf of the subcontractor by its duly authorised officers:
Signature of Director/Secretary
»……………………………………….
Name of Director/Secretary
»……………………………………….
Signature of Director
»……………………………………….
Page 2 of 13
Name of Director
»……………………………………….
Executed for and on behalf of the Contractor by its duly authorised officers
Signature of Director/Secretary
»……………………………………….
Name of Director/Secretary
»……………………………………….
Signature of Director
»……………………………………….
Name of Director
»……………………………………….
SUBCONTRACT INFORMATION
The Subcontract Information is part of the Subcontract. Words and phrases are defined in clause
83.
Project, Subcontract & Contract
Item
1
Project and Contract Name
The Project and Contract name is:
The Contract number is:
2
»
»
Site
Mentioned in clause 40 & 83
The Site is:
3
»
Description of the Subcontract Works
A - The Subcontract Works
Mentioned in clauses 10 & 83
Description of the Subcontract Works:
»
B - The Contract
The Contract is:
»the agreement dated………. between
the Principal and the Contractor.
Title:
Contract No.
C - The Principal
The Principal is:
Contractor's details
»
Page 3 of 13
4
Contractor
The Contractor is:
5
»
ABN »
Contractor's Authorised Person
Mentioned in clause 2
The Contractor's Authorised Person is:
6
»
Notices to the Contractor
Mentioned in clause 30
Notices must go to the Contractor's Authorised Person listed above, at the address or
number shown here.
»…………………………………..
»…………………………………..
»…………………………………..
»…………………………………..
Postal address:
»…………………………………..
(for delivery by registered post registered post)
»…………………………………..
»…………………………………..
»…………………………………..
Facsimile number:
»…………………………………..
e-mail address
»…………………………………..
Office address:
(for delivery by hand)
7
Senior executive
A - Contractor's senior executive
Mentioned in clauses 73 & 74
The Contractor's senior executive is:
»…………………………………..
B - Documents copied to the Contractor’s senior executive
Mentioned in clauses 73
When documents must be copied to the Contractor's senior executive the address is as
follows:
»…………………………………..
»…………………………………..
»…………………………………..
»…………………………………..
Postal address:
»…………………………………..
(for delivery by registered post registered post)
»…………………………………..
»…………………………………..
»…………………………………..
Facsimile number:
»…………………………………..
e-mail address
»…………………………………..
Office address:
(for delivery by hand)
Subcontractor's details
Page 4 of 13
8
Subcontractor
The following information in the Subcontract Information Items 8 to 11 is to be provided by
the tenderer in the Tender Schedule (Schedule of Subcontract Information).
Details must then be inserted by the Contractor at the Subcontract award.
The Subcontractor is:
9
»………………………………….
»………………………………….
ABN»…………………………….
Subcontractor's Authorised Person
Mentioned in clauses 2
The Subcontractor’s Authorised Person is: »………………………………….
10
Senior executive
Mentioned in clauses 74
The Subcontractor’s senior executive is:
11
»………………………………….
Notices to Subcontractor
Mentioned in clauses 30
Notices must go to the personnel listed above, at the address or number shown here.
»…………………………………..
»…………………………………..
»…………………………………..
»…………………………………..
Postal address:
»…………………………………..
(for delivery by registered post registered post)
»…………………………………..
»…………………………………..
»…………………………………..
Facsimile number:
»…………………………………..
e-mail address
»…………………………………..
Office address:
(for delivery by hand)
Dates and times
12
Date of Subcontract
Mentioned in clause 83
Date to be inserted by the Contractor at Subcontract Award. This is the date the Contractor
signs the Subcontract Agreement after the Subcontractor has signed, or the date of the
Contractor's Letter of Award to the Contractor (as applicable).
Date of Contract is:
»
(“The date of the Letter of Award” applies if not
filled in).
13
Contractual Completion Date and times
Mentioned in clause 83
The time periods for Completion include the 14 days or other time periods referred to in
Clause 38.
Whole of the Subcontract Works
Time period for possession of the Site
is:
» 14 days from Date of Subcontract
Page 5 of 13
Time period for Completion is:
» 50 calendar weeks from Date of
Subcontract
Whole of the Subcontract Works and Subcontract Milestones
Insert number of weeks for the milestones (eg '52 weeks).
Add time periods for possession of the whole of the site or parts of the site if Milestones are
required, describe them and add times to suit each.
Ensure the whole of the Subcontract Works is covered by the Subcontract Milestones.
Subcontract Milestone 1
Description of Subcontract Milestone:
Time period for possession of the Site is:
Time period for Completion is:
»
»
»
weeks from »
»
»
»
weeks from »
»
»
»
weeks from »
Subcontract Milestone 2
Description of Subcontract Milestone:
Time period for possession of the Site is:
Time period for Completion is:
Subcontract Milestone 3
Description of Subcontract Milestone:
Time period for possession of the Site is:
Time period for Completion is:
When additional Subcontract Milestones are required copy and paste the format
above to ensure the whole of the works is covered by the Subcontract Milestones.
South Australian Government requirements
14
Codes
Mentioned in clause 13
The SA Government codes that apply
are:
15
Code of Practice for the South
Australian Construction Industry
Principal contractor
Not Used
16
SA Government construction guidelines requirements
A - WHS Management Plan
Mentioned in clause 15.3
Is the Subcontractor required to submit
a Project WHS Management Plan?
(Yes/No)
»
(“Yes” applies if not filled in).
Page 6 of 13
B - Environmental Management Plan
Mentioned in clause 18.2
Is the Subcontractor required to submit
an Environmental Management Plan?
(Yes/No)
16A
»
(“Yes” applies if not filled in).
Workforce Participation and Skills Development
Mentioned in clause 18A
Does clause 18A apply?
(Yes/No)
»
Reference Subcontract Documents
17
Reference Subcontract Documents
Mentioned in clause 7.1.5
The Reference Subcontract Documents
are:
Subcontract Agreement / Letter of
Award ; and»
(Letter of Award applies if not filled in);
Contractor's Documents
18
Copies of Contractor's Documents
Mentioned in clause 7.4
The number of copies of the
Contractor’s Documents to be provided
to the Subcontractor is
»
(“5 printed copies” applies if not filled in)
Subcontractor's Documents
19
Copies of Subcontractor's Documents
Mentioned in clause 45.1 5
The number of copies of the
Subcontractor’s Documents to be
provided to the Contractor is
Sub-subcontract work
20
Use of GC21 Subcontract
»
(“5 printed copies” applies if not filled in)
Page 7 of 13
Not Used
21
Use of equivalent clauses
Mentioned in clauses 31.3 & 31.4
Sub-subcontract value requiring use of
equivalent clauses is:
22
»
(must be the same as the value in the Contract
Information item 21 of the Contract)
Payment for minor Sub-subcontract
Mentioned in clauses 31.3
Maximum period before payment for
minor Sub-subcontract:
23
»
(must be the same as the value in the Contract
Information item 22 of the Contract)
Preferred Subcontractors
Not used
24
Pre qualified Contractors
Not used
25
Subcontractor's warranty
Mentioned in clause 33.1
Trades or areas of work requiring a
Subcontractor's warranty are:
»
(“Not required” applies if not filled in)
Insurance by the Contractor (or Principal)
Mentioned in clause 36.1 & 36 2
26
Works Insurance
Minimum cover:
Insurer:
Policy Number:
Period of cover:
27
Public liability
Minimum cover:
Insurer:
Policy number:
Period of cover:
28
»
»
»
Until issue of Final Subcontract
Payment Schedule.
»
»
»
Until issue of Final Subcontract
Payment Schedule.
Professional indemnity
Is a professional indemnity policy to be held »
by the Subcontractor?
(“Yes” applies if not filled in).
Page 8 of 13
Minimum cover:
Insurer:
Policy number:
Period of cover:
29
»
»
»
»
Asbestos liability
Not used
30
Marine liability
Minimum cover:
Insurer:
Policy number:
Period of cover:
»
»
»
The whole of the period of use of
waterborne craft of 8 or more metres in
length on work for or in connection with
the Contract.
Insurance by the Subcontractor
Mentioned in clause 36.3
31
Workers compensation
Details to be provided by preferred tenderer and inserted by the Contractor.
Minimum cover:
Insurer:
Policy number:
Period of cover:
32A
As required by law.
»
»
Until issue of Final Subcontract
Payment Schedule.
Asbestos liability
Details to be provided by preferred tenderer and inserted by the Contractor.
Minimum cover:
Insurer:
Policy number:
Period of cover:
32
As required by law
»
»
»
Personal accident
Details to be provided by preferred tenderer and inserted by the Contractor.
Minimum cover:
Insurer:
Policy number:
Period of cover:
Security
Death and permanent disability $»
Temporary disablement $»
»
»
»
Page 9 of 13
33
Completion Undertaking
Mentioned in clause 37.1
Percentage of the Subcontract Price at
the Date of Subcontract is:
34
»
Post-Completion Undertaking
Mentioned in clause 37.1
Percentage of the Subcontract Price at
the Date of Subcontract is:
35
»
Return of Post-Completion Undertaking
Mentioned in clause 37.2.2
Period for return of Post-Completion
Undertaking is:
»
months
(12 months if not filled in).
Site information
36
Site information
Mentioned in clause 40
Information contained in the documents listed in Items 36A and 36B does not form
part of the Contract:
A - Documents not guaranteed for completeness
Documents not guaranteed for
completeness are:
»
B - Documents not guaranteed for accuracy, quality or completeness
Documents not guaranteed for accuracy,
quality or completeness are:
»
Scope of activities
37
Scope of Design activities
A - Extent of Design by the Subcontractor
Mentioned in clauses 1.1.1 & 43.1
Extent of Design by the Subcontractor is:
B - Building Code of Australia
»
Page 10 of 13
Mentioned in clauses 43.1 & 48
Is the Building Code of Australia to
apply to the Design in the
Subcontractor's Documents (clause
43.4) and to the Materials used in the
construction of the Subcontract Works
(clause 48)? (Yes/No)
38
»
("Yes" applies if not filled in).
Responsibility for Design
Mentioned in clause 44
Is the Subcontractor to assume
responsibility for design carried out by
the Contractor
and does clause 44 apply?
(Yes/No)
39
»
("No" applies if not filled in).
Working days and hours of work
Mentioned in clause 26
Working days and hours of work:
»
("Comply with Statutory Requirements" applies
if not filled in).
40
Rise or fall adjustments
Mentioned in clause 59.1
Are rise or fall adjustments applicable to
the Subcontract? (Yes/No)
41
»
("No" applies if not filled in).
Site Conditions
Mentioned in clause 41.8
Is the Subcontractor to bear the full risk,
including cost and time implications, of
encountering and dealing with
materially adverse Site Conditions?
(Yes/No)
»
("No" applies if not filled in).
Innovation
42
Innovation
Mentioned in clause 46.8
Do the parties agree to share the savings
in the cost to the Subcontractor of the
Subcontract Works resulting from
changes accepted by the Contractor and
Principal? (Yes/No)
»
("No" applies if not filled in).
If "No", the Subcontractor keeps the direct saving in the cost to the Subcontractor of
the Subcontract Works, as provided in clause 46.5.
Percentage of saving to be allocated to
the Subcontractor is:
»
(100% applies if not filled in).
Page 11 of 13
Percentage of saving to be allocated to
the Contractor is:
»
(0% applies if not filled in).
Payments
43
Subcontract Price at the Date of Subcontract
Mentioned in clause 59
The Subcontract Price and basis of payment must be inserted by the Contractor at
the Subcontract Award.
Subcontract Price at the Date of
Subcontract is:
»$
Basis of payment:
Basis of payment is:
»
(Lump sum / Schedule of Rates /
Schedule of Rates and lump sums)
44
Amount of Prepayment
Mentioned in clause 61.1.1
Amount of Prepayment is:
45
»$
Completion Amount
Mentioned in clauses 62.4.2 & 64
The Completion Amount is:
»$
(must be no more than the value in the Contract
Information item 45 of the Contract)
46
Provisional Sums
Mentioned in clause 59
Option 1 applies when Provisional Sums are to be used. If Option 1 is used delete
Option 2
Provisional Sums items referred to in
clause 59:
Option 2
Provisional Sums items referred to in
clause 59:
47
»A list is provided in clause »
Not applicable.
Provisional Sum margin
Mentioned in clause 59.6.2
The Provisional Sum margin percentage is: »
(10% if not filled in).
48
Variations
A - Subcontractor's Margin on Variations
Mentioned in clauses 52 & 83
The percentage for Subcontractor's
Margin on Variations is:
»
(10% if not filled in).
B - Subcontractor's hourly labour rate
Mentioned in clause 52.5.4
Page 12 of 13
The tendered Subcontractor's hourly labour rate or rates must be inserted by the
Contractor at the Subcontract Award.
The Subcontractor's hourly labour rate(s):
49
»
Payment date and method
A - Date for Payment Claims
Date in month for making Payment Claims is:
»
(3 Business Days before the date for a
Payment Claim under the Contract applies if not
filled in).
B - Type of payment
Mentioned in clause 62.2
The method of payment will be by:
(Progress Payment / Milestone Payment)
»
(Monthly Progress Payments apply if not filled
in).
C - Time for payment
Mentioned in clause 63.5
Time that a payment becomes payable
Subject to clause 63.5 is:
50
»
(10 Business Days applies if not filled in).
Interest on late payments
Mentioned in clause 66
Rate of interest per annum is:
»
(must be the same as the value in the Contract
Information item 50 of the Contract)
Delay costs
51
Delay costs
Mentioned in clauses 55.1 to 55.3
A - Delay costs
Rate per day is:
»$
B - Delay to Completion and liquidated damages
Mentioned in clauses 55.4 to 55.9
Clause 55.4 applies to this Subcontract?
(Yes/No)
»
("No" applies if not filled in).
If "No" applies, the Contractor reserves its rights
to claim general damages if the Subcontractor
fails to achieve Completion by the Contractual
Completion Date).
*The rates for each are separate and distinct from each other.
Engagement of Valuer
Page 13 of 13
52
Engagement of Valuer
The Valuer is not engaged under the Subcontract.
Expert Determination
53
Time to refer Issue to Expert Determination
Mentioned in clause 74.3
Maximum number of days for either
party to refer an Issue to Expert
Determination is:
54
Within 21 days of becoming
entitled to refer an Issue to Expert
Determination under clause 74.2.
Expert Determination representative
Mentioned in clause 75
The name of the representative of the
Contractor for all of the purposes in
clause 75, to whom all documents
must be copied under Schedule 6
(Expert Determination Procedure) is:
»
Insert the office street and postal addresses (including postcodes), Facsimile
Number and e-Mail address for the person in Item 54 above.
»…………………………………..
»…………………………………..
»…………………………………..
»…………………………………..
Postal address:
»…………………………………..
(for delivery by registered post registered post)
»…………………………………..
»…………………………………..
»…………………………………..
Facsimile number:
»…………………………………..
e-mail address
»…………………………………..
Office address:
(for delivery by hand)
55
Person to nominate Expert
Person to nominate Expert is:
Telephone
Facsimile
56
»
»
»
Threshold amount for litigation
Mentioned in clause 75.86
Threshold amount for litigation
following a determination is:
»
Page 1 of 1
SCHEDULES
Schedule 1
Subcontractor's Warranty
Schedule 2A
Undertaking to the principal (on behalf of the Subcontractor or
Consultant)
Schedule 2B
Undertaking to the Contractor (on behalf of Subcontractor,
Supplier or Consultant)
Schedule 3
Payment Claim Worksheet
Schedule 4
Certificate of Compliance
Schedule 5
Agreement with Valuer (Not used)
Schedule 6
Expert Determination Procedure
Schedule 7
Statutory Declaration
Schedule 8
Cost Adjustment Formula (Not used)
Schedule 9
Principles for Valuing Daywork Variation (Not used)
Page 1 of 4
SCHEDULE 1
SUBCONTRACTOR'S WARRANTY
Refer to clause 33.1 of the Subcontract.
DEFINITIONS
»……………………………………….
between
Subcontractor or Supplier:
»……………………………………….
»……………………………………….
ABN »…………………………………
and
The Principal:
»……………………………………….
concerning
The Contract:
The contract between the Principal and the
Contractor
Contract title:
»……………………………………….
Contract number:
»……………………………………….
Works:
The works to be Designed and constructed by the
Contractor, as described in the Contract.
The Contractor:
»……………………………………….
ABN»………………………………..…
»……………………………………….
Subcontract Work or Products: »……………………………………….
Warranty Period:
» ….. years from the Actual Completion Date of the
whole of the Works.
Deed dated:
Other words and phrases in this Deed have the meanings given in the GC21
Subcontract. In this Deed, the term Subcontractor includes Supplier. The terms
Subcontractor, Contractor and Principal include their successors and permitted
assigns.
TERMS OF DEED
1.
Warranty
1.1
The Subcontractor warrants that all work performed and all Materials supplied by
the Subcontractor as part of the Subcontract Work or Products will:
1.2
1.1.1
comply in all respects with the requirements of the Contract;
1.1.2
comply with the applicable industry standards, including (without limitation)
the Building Code of Australia and any applicable Australian Standards, to
the extent that the quality of Materials or standard of workmanship is not
specified in the Contract; and
1.1.3
be fit for the purposes for which they are required.
The Subcontractor warrants that it will use reasonable skill and care in performing
all work associated with the Subcontract Work or Products.
Page 2 of 4
2
Replacement or making good
2.1
The Subcontractor promises to replace or make good, to the reasonable
satisfaction of the Principal, any of the Subcontract Work or Products which, within
the Warranty Period, are found to:
2.1.1
be of a lower standard or quality than referred to in clause 1 of this Deed;
or
2.1.2
have deteriorated to such an extent that they are no longer fit for the
purposes for which they were required.
2.2
Nothing in this clause 2 affects the Subcontractor's liability until any limitation
period under statute expires.
2.3
The liability of the Subcontractor under this clause is reduced to the extent that
deterioration is caused by:
2.3.1
mishandling, damage before installation, or incorrect installation, in each
case caused by others;
2.3.2
normal wear and tear;
2.3.3
incorrect operational procedures or maintenance, in each case not
attributable to the Subcontractor; or
2.3.4
any other cause beyond the control of the Subcontractor.
3
Costs
3.1
The Subcontractor promises to undertake and meet the reasonable cost of any
work necessary:
3.1.1
to carry out any part of the Works to enable the requirements of clause 2 of
this Deed to be carried out; or
3.1.2
restore or make good the Works after carrying out those requirements,
whichever the Principal requires.
4
Indemnity
4.1
The Subcontractor indemnifies the Principal against Claims, actions and loss or
damage arising out of breach by the Subcontractor of clauses 1 or 2 of this Deed.
5
Notice of Defects
5.1
The Principal may notify the Subcontractor in writing if it considers there has been
any breach of any provision of this Deed.
6
Time to remedy
6.1
The Subcontractor must do everything to remedy the breaches notified to it under
clause 5 of this Deed within a reasonable time after the Principal's notice.
Page 3 of 4
7
Failure to remedy
7.1
If the Subcontractor fails to carry out and complete the work specified in the
Principal's notice under clause 5 of this Deed within a period determined by the
Principal to be reasonable in the circumstances, the Principal may give written
notice to the Subcontractor that the Principal intends to have that work carried out
by others. This notice must allow a reasonable period for the Subcontractor to
respond.
7.2
If the Subcontractor fails to complete the work by the date specified in clause 7.1,
or another date agreed by the parties, the Principal may have the work carried out
by others, and the Subcontractor indemnifies the Principal for the reasonable costs
and expenses of doing so.
8
Urgent action by Principal
8.1
The Principal may take any urgent action necessary to protect the Works, other
property or people as a result of a breach of clause 1 of this Deed.
8.2
The Subcontractor agrees that the Principal taking such action does not affect any
obligation of the Subcontractor under this Deed.
8.3
The Subcontractor indemnifies the Principal for the reasonable costs and
expenses paid or payable in taking that action.
9
Assignment
9.1
The Principal may assign the benefit of this Deed to the owner or operating
authority of the Works and must give notice of that assignment to the
Subcontractor.
10
Operation of Deed
This Deed comes into effect when executed by the Subcontractor, and is effective
whether or not executed by the Principal.
Executed as a deed
The common seal of the Subcontractor was affixed in accordance with its Articles
of Association in the presence of:
Signature of Director/Secretary
»……………………………………….
Name of Director/Secretary
»……………………………………….
Signature of Director
»……………………………………….
Name of Director
»……………………………………….
or (if the Subcontractor is not a corporation)
Signed, sealed and delivered on behalf of the Subcontractor by:
Signature of Authorised Person
»……………………………………….
Name of Authorised Person
»……………………………………….
Page 4 of 4
and witnessed by:
Signature of witness
»……………………………………….
Name of witness (in full)
»……………………………………….
Signed, sealed and delivered on behalf of the Principal by:
Signature of Authorised Person
»……………………………………….
Name of Authorised Person
»……………………………………….
and witnessed by:
Signature of witness:
»……………………………………….
Name:
»……………………………………….
Place:
»……………………………………….
Page 1 of 2
SCHEDULE 2 (A)
UNDERTAKING TO THE PRINCIPAL
Refer to clause 61 of the Subcontract.
On behalf of the Subcontractor or Consultant
Name of Financial Institution:
The Principal:
The Contractor:
The Subontractor:
Security Amount
The Contract:
Contract Title:
Contract Number:
»……………………………………….
»……………………………………….
»……………………………………….
ABN»………………………………….
»……………………………………….
ABN»………………………………….
$»………………………………………
The contract between the Principal and the
Contractor
»……………………………………….
»……………………………………….
Other words and phrases in this Undertaking have the meanings given in the
GC21 Subcontract.
Undertaking
1.
At the request of the Subcontractor or Consultant (as applicable) and the Financial
Institution, and in consideration of the Principal accepting this undertaking from the
Financial Institution in connection with the Contract and the agreement between
the Contractor and the Subcontractor or Consultant (as applicable), the Financial
Institution unconditionally undertakes to pay on demand any amount or amounts
demanded by the Principal to the maximum aggregate sum of the Security
Amount.
2.
The Financial Institution unconditionally agrees that, if notified in writing by the
Principal (or someone authorised by the Principal) that it requires all or some of
the Security Amount, the Financial Institution will pay the Principal at once, without
reference to the Subcontractor or Consultant (as applicable) and despite any
notice from the Subcontractor or Consultant (as applicable) not to pay.
3.
The Principal must not assign this Undertaking without the prior written agreement
of the Financial Institution, which must not be unreasonably withheld.
4.
This undertaking continues until one of the following occurs:
5
4.1
the Principal notifies the Financial Institution in writing that the Security
Amount is no longer required; or
4.2
this undertaking is returned to the Financial Institution; or
4.3
the Financial Institution pays the Principal the whole of the Security
Amount, or as much as the Principal may require overall.
At any time, without being required to, the Financial Institution may pay the
Page 2 of 2
Principal the Security Amount less any amounts previously paid under this
undertaking (or a lesser sum specified by the Principal) and the liability of the
Financial Institution will then immediately end.
Dated »……………………………………….
»……………………………………….
Execution by the Financial Institution:
at
Page 1 of 2
SCHEDULE 2 (B)
UNDERTAKING TO THE CONTRACTOR
Refer to clause 37 of the Subcontract.
On behalf of the Subcontractor, Supplier or Consultant
Name of Financial Institution:
The Contractor:
Subcontractor, Supplier or
Consultant:
Security Amount
»……………………………………….
»……………………………………….
ABN»………………………………….
»……………………………………….
ABN »…………………………………
$»………………………………………
Other words and phrases in this Undertaking have the meanings given in the
GC21 Subcontract.
Undertaking
1.
At the request of the Subcontractor, Supplier or Consultant (as applicable) and the
Financial Institution, and in consideration of the Contractor accepting this
undertaking from the Financial Institution in connection with the agreement
between the Contractor and the Subcontractor, Supplier or Consultant (as
applicable), the Financial Institution unconditionally undertakes to pay on demand
any amount or amounts demanded by the Contractor to the maximum aggregate
sum of the Security Amount.
2.
The Financial Institution unconditionally agrees that, if notified in writing by the
Contractor (or someone authorised by the Contractor) that it requires all or some
of the Security Amount, the Financial Institution will pay the Contractor at once,
without reference to the Subcontractor, Supplier or Consultant (as applicable) and
despite any notice from the Subcontractor, Supplier or Consultant (as applicable)
not to pay.
3.
The Contractor must not assign this Undertaking without the prior written
agreement of the Financial Institution, which must not be unreasonably withheld.
4.
This undertaking continues until one of the following occurs:
5.
4.1
the Contractor notifies the Financial Institution in writing that the Security
Amount is no longer required; or
4.2
this undertaking is returned to the Financial Institution; or
4.3
the Financial Institution pays the Contractor the whole of the Security
Amount, or as much as the Contractor may require overall.
At any time, without being required to, the Financial Institution may pay the
Contractor the Security Amount less any amounts previously paid under this
undertaking (or a lesser sum specified by the Contractor) and the liability of the
Financial Institution will then immediately end.
Dated »……………………………………….
at
Page 2 of 2
»……………………………………….
Execution by the Financial Institution:
Page 1 of 2
SCHEDULE 3
PAYMENT CLAIM WORKSHEET
Refer to clause 62 of the Subcontract.
Details for electronic funds transfer to the Subcontractor's account are included in clause 63.6.
The Subcontractor:
The Subcontract:
Subcontract Title:
Subcontract Number:
Name of Financial Institution:
Account Name:
Account Number
»……………………………………….
ABN»………………………………….
»……………………………………….
»……………………………………….
»……………………………………….
»……………………………………….
»……………………………………….
»……………………………………….
1
Activity (& Subcontract Milestone) to suit
Schedule of prices and/or activities for work
covered by a lump sum
2
5
3
4
Subcontract Value of
Value
Activity
Milestone activity (& completed Completed
& activity) Subcontract %
$
Milestone)
number
$
Amount brought forward from previous sheet
$
$
Amount carried forward to next sheet
$
$
1
Item or activity to suit Schedule of Rates
2
Item
activity
number
3
4
Price rate or Quantity
price for
completed
item or
activity $
5
Value
Completed
$ (col 3 x col
4)
Amount brought forward from previous sheet
$
Amount carried forward to next sheet
$
Complete this section on the last sheet only
Subtotal for any Schedule of Rates items
$
Page 2 of 2
$
$
$
$
Value Completed
Less payments already made
Less retention for the Completion Amount under clause 64, if applicable
Claimed Amount
$
$
$
$
Page 1 of 1
SCHEDULE 4
CERTIFICATE OF COMPLIANCE
Refer to clause 62.6.3 of the Subcontract.
Contract
The Contract:
Subcontract Title:
Subcontract Number:
Dated:
The contract between the Contractor and the
Subcontractor »
»……………………………………….
»……………………………………….
»……………………………………….
Certificate
The Contractor:
The Subcontractor:
Consultant:
Consultant (2):
To:
»……………………………………….
From:
»……………………………………….
ABN»………………………………….
»……………………………………….
ABN»………………………………….
»……………………………………….
ABN»………………………………….
In accordance with clause 62.6.3 of the Subcontract, we certify that all design work
done (and all construction work* relating to the Design to the date of this
Certificate of Compliance) is in accordance with the Subcontract.
Consultant:
Signature of Authorised Person
Name of Authorised Person Date
Date:
Consultant (2):
Signature of Authorised Person
Name of Authorised Person
Date:
Signed by the Consultant(s):
»……………………………………….
»……………………………………….
»……………………………………….
»……………………………………….
»……………………………………….
»……………………………………….
* delete if not applicable
In accordance with clause 62.6.3 of the Subcontract, we certify that all work done
(including Design and construction work done and Materials supplied) to the date
of this Certificate of Compliance is in accordance with the Subcontract.
Signature of Authorised Person
Name of Authorised Person
Date:
Signed by the Subcontractor:
»……………………………………….
»……………………………………….
»……………………………………….
Page 1 of 1
SCHEDULE 5
AGREEMENT WITH VALUER
Refer to clauses 39, 51 and 52 of the Subcontract.
Not used
Page 1 of 3
SCHEDULE 6
EXPERT DETERMINATION PROCEDURE
Refer to clause 75 of the Subcontract
1
Questions to be determined by the Expert
1.1
The Expert must determine for each Issue the following questions (to the extent
that they are applicable to the Issue):
1.1.1
1.1.2
1.1.3
Is there an event, act or omission which gives the claimant a right to
compensation, or otherwise assists in resolving the Issue if no
compensation is claimed:
(I)
under the Subcontract
(2)
for damages for breach of the Subcontract, or
(3)
otherwise in law?
If so:
(1)
what is the event, act or omission?
(2)
on what date did the event, act or omission occur?
(3)
what is the legal right which gives rise to the liability to
compensation or resolution otherwise of the Issue?
(4)
is that right extinguished, barred or reduced by any provision of the
Subcontract, estoppel, waiver, accord and satisfaction, set-off,
cross-claim, or other legal right?
In the light of the answers to clauses 1.1.1 and 1.1.2 of this Expert
Determination Procedure:
(1)
what compensation, if any, is due from one party to the other and
when did it fall due?
(2)
applying the rate of interest specified in the Subcontract, what
interest, if any, is due when the Expert determines that
compensation?
(3)
if compensation is not claimed, what otherwise is the resolution of
the Issue?
1.2
The Expert must determine for each Issue any other questions identified or
required by the parties, having regard to the nature of the Issue.
2
Submissions
2.1
The procedure for submissions to the Expert is as follows:
2.1.1
The party to the Subcontract which has referred the Issue to Expert
Page 2 of 3
Determination must make a submission in respect of the Issue, within 15
Business Days after the date of the letter of engagement of the Expert
referred to in clause 75.2 of the Subcontract.
2.1.2
The other party must respond within 15 Business Days after receiving a
copy of that submission or such longer period as the other party may
reasonably require, having regard to the nature and complexity of the Issue
and the volume of the submission. If the parties do not agree on that longer
period, the Expert will promptly determine any extra time permitted,
following a submission on the point by a party desiring to make a
submission, within the time specified by the Expert. The response to the
submission in clause 2.1.1 may include cross-claims.
2.1.3
The party referred to in clause 2.1.1 may reply to the response of the other
party, but must do so within 10 Business Days or such longer period as
that party may reasonably require (in the same terms as in clause 2.1.2)
after receiving the response, and must not raise new matters
2.1.4 The other party may comment on the reply, but must do so within 10
Business Days or such longer period as that party may reasonably require
(in the same terms as in clause 2.1.2) after receiving the reply, and must
not raise new matters.
2.2
The Expert must ignore any submission, response, reply, or comment not made
within the time given in clause 2.1 of this Expert Determination Procedure, unless
the Contractor and the Subcontractor agree otherwise.
2.3
The Expert may request further information from either party. The request must be
in writing, with a time limit for the response. The Expert must send a copy of the
request and the response to the other party, and give the other party a reasonable
opportunity to comment on the response.
2.4
All submissions, responses, replies, requests and comments must be in writing. If
a party to the Subcontract gives information to the Expert, it must at the same time
give a copy to the other party. All documents to be copied to the Contractor under
this Expert Determination Procedure must be sent to the relevant person at the
relevant postal or other address specified in Subcontract Information item 54. This
address may be different to the address for the giving of notices to the Contractor
under clause 30.1.
3
Conference
3.1
The Expert may request a conference with both parties to the Subcontract. The
request must be in writing, setting out the matters to be discussed.
3.2
The parties agree that such a conference is not to be a hearing which would give
anything under this Expert Determination Procedure the character of an arbitration.
4
Role of Expert
4.1
The Expert:
4.1.1
acts as an Expert and not as an arbitrator;
4.1.2
must make its determination on the basis of the submissions of the parties,
including documents and witness statements, and the Expert's own
Page 3 of 3
expertise; and
4.1.3
4.2
must issue a certificate in a form the Expert considers appropriate, stating
the Expert's determination and giving reasons, within 16 weeks, or as
otherwise agreed by the parties, after the date of the letter of engagement
of the Expert referred to in clause 75.2 of the Subcontract.
If a certificate issued by the Expert contains a clerical mistake, an error arising
from an accidental slip or omission, a material miscalculation of figures, a mistake
in the description of any person, matter or thing, or a defect of form, then the
Expert must correct the certificate.
Page 1 of 3
SCHEDULE 7
STATUTORY DECLARATION
Refer to clause 62.6.2 of the Subcontract
Oaths Act 1936 (SA)
Definitions
The Contractor is:
The Subcontractor is:
The Subcontract:
Subcontract Title:
Subcontract Number:
Dated:
»……………………………………….
»……………………………………….
ABN»………………………………….
The contract between the Contractor
and the Subcontractor
»……………………………………….
»……………………………………….
»……………….(Date of Subcontract).
Declaration
Full Name:
Address:
I, »……………………………………….
of »……………………………………….
do hereby solemnly declare the following and I make this solemn declaration
conscientiously believing the same to be true, and by virtue of the provisions of the Oaths
Act 1936 (SA):
1.
I am the representative of the Subcontractor in the Office Bearer capacity of:
Insert position title of the Declarant
» ……………………………………………………………………………………..
2.
I am in a position to make this statutory declaration about the facts attested to.
3.
I make this declaration in relation to work done under the Subcontract up to the
date of this statutory declaration.
Delete the words in italics that are not applicable
4.
The Subcontractor has/has not entered into Sub-subcontracts, Supplier or
Consultant agreements for the performance of the work under the Subcontract.
Remuneration of Subcontractor's employees engaged to carry out work under the
Subcontract
5.
All remuneration payable to the Subcontractor's relevant employees for work under
the Subcontract has been paid and the Subcontractor has made provision for all
other benefits accrued in respect of the employees. "Relevant employees" are
Page 2 of 3
those engaged in carrying out the Subcontract work. "Remuneration" means
remuneration or other amounts payable to relevant employees by legislation, or
under an industrial instrument, in connection with work done by the employees, in
connection with work done by the employees .
Workers Compensation insurance of the Subcontractor's employees
7.
All workers compensation insurance premiums payable by the Subcontractor in
respect of the work done in connection with the Subcontract have been paid. This
statutory declaration is accompanied by a copy of any relevant certificate of
currency in respect of that insurance.
Workers Compensation insurance for workers of Sub-subcontractors
Delete the words in italics that are not applicable
8.
The Subcontractor
has been given written statements that all workers compensation insurance premiums
payable by each subcontractor in respect of the work done in connection with the
Subcontract to the date of this statutory declaration have been paid, accompanied
by a copy of any relevant certificate of currency in respect of that insurance.
Payments to Sub-subcontractors
16.
The Subcontractor has paid every Sub-subcontractor, Supplier and Consultant to
the Subcontractor all amounts payable to each of them by the Subcontractor as at
the date of this statutory declaration with respect to engagement of each of them
for the performance of work or the supply of materials for or in connection with the
Subcontract.
17.
The provisions of clauses 31 in the Subcontract have been complied with by the
Subcontractor.
18.
The Subcontractor has been informed by each Sub-subcontractor and Consultant
to the Subcontractor (except for Sub-subcontracts not exceeding $25,000 at their
commencement) by statutory declaration in equivalent terms to this declaration
(made no earlier than the date 14 days before the date of this declaration):
19.
18.1
that their Sub-subcontracts with their subcontractors, suppliers and
consultants comply with the requirements of clause 31 of the Subcontract,
and
18.2
that all of their employees, subcontractors, consultants and suppliers, as at
the date of the making of such a declaration:
(1)
have been paid all remuneration and benefits due and payable to
them by; or
(2)
had accrued to their account all benefits to which they are entitled
from the Sub-subcontractor or Consultant of the Subcontractor or
from any other subcontractor or consultant (except for subcontracts
not exceeding $25,000 at their commencement) in respect of any
work for or in connection with the Subcontract.
I am not aware of anything to the contrary of any statutory declaration referred to
Page 3 of 3
in paragraph 18 of this declaration and on the basis of the statutory declarations
provided, I believe the matters set out in paragraph 18 to be true.
20.
And I make this solemn declaration, as to the matters aforesaid, according to the
law in this behalf made, and subject to the punishment by law provided for any
wilfully false statement in any such declaration.
Subcontract Cash Security
21.
All Subcontract security held in the form of cash and all cash retentions from
Subcontractor payments are held in trust by the Contractor. The cash security and
retentions are held in trust for whichever party is entitled to them, until payment is
made to that party.
22.
The Contractor is maintaining complete records to account for the cash. The
records are available to the relevant Subcontractors and the Principal on request.
Signature of Declarant:
Place:
Date:
Signature of legally authorised
person* before whom the
declaration is made:
Name and title of person* before
whom the declaration is made:
»……………………………………….
declared at:
»……………………………………….
on »……………………………………
before me:
»……………………………………….
»……………………………………….
Notes
1.
2.
In this declaration:
(a)
the words 'principal contractor" "relevant employee" and "relevant employees" have the
meanings applicable under the relevant Act;
(b)
the word "subcontractor" in paragraphs 6 and 10 has the meaning applicable under the
relevant Act; and
(c)
otherwise the words "Contractor', "Subcontractor", "Sub-subcontractor", "Supplier";
"Consultant", "subcontractor", "supplier" and "Consultant" have the meanings given in or
applicable under the Subcontract
* The declaration must be made before one of the following persons:
(a)
(b)
where the Declaration is sworn within the State of South Australia:
(i)
a justice of the peace of the State of South Australia;
(ii)
a solicitor of the Supreme Court of South Australia with a current practising
certificate;
(iii)
a notary public; or
(iv)
another prescribed person legally authorised to administer an oath under the Oaths
Act 1936 (SA).
where the Declaration is sworn in a place outside the State of South Australia:
(i)
a notary public; or
(ii)
any person having authority to administer an oath in that place.
Page 1 of 1
SCHEDULE 8
COSTS ADJUSTMENT FORMULA
Not used
Page 1 of 1
SCHEDULE 9
PRINCIPLES FOR VALUING DAYWORK VARIATION
Not used
Page 1 of 1
ATTACHMENTS
Attachment 1
Start-up Workshop
Attachment 2
Performance Evaluation
Attachment 3
Performance Evaluation Record
Page 1 of 1
ATTACHMENT 1
THE START-UP WORKSHOP
Refer to clause 35 of the Subcontract.
The start-up workshop is held to encourage the parties and others concerned with the Contract and the Works
to work co-operatively to achieve a successful project. this Attachment 1 is intended as a simple guide for the
participants.
The workshop takes place within 28 days of the Date of Contract. The workshop should take half a day,
although large or complex projects may require longer.
Participants
The workshop includes representatives of the Principal and Contractor together with
others concerned with the Works. This might include representatives of authorities,
eventual users of the Works, the local community, Consultants, Subcontractors and
Suppliers.
The sample agenda, which is a guideline for a Start-up workshop, includes:
- welcome by the facilitator;
- introduction of participants;
- workshop purpose, agenda review, workshop guidelines;
- project overview;
- co-operative contracting - overview;
- monitoring and evaluation;
- co-operative contracting applied to the Contract;
- develop communications framework and directory;
- identify key concerns and solutions;
- opportunities for Innovation;
- prioritization and review;
- closing comments and feedback; and
- close of workshop.
Page 1 of 2
ATTACHMENT 2
PERFORMANCE EVALUATION
Refer to clause 6 of the Subcontract. (This form is provided for guidance only)
Contract Title:
Contract Number:
Date:
Topic
Communication
Time
Cost
Quality
Safety
Claims and Issue
Resolution
Rating system
»
»
»
Contract
Clause
Objectives
3

co-operation between parties
4

duty not to hinder performance
5

early warning
6

evaluation and monitoring
25

time management
54

extensions of time
69

Completion by Contractual
Completion Dates
52

Variations
61

Prepayment
63, 65

Payments, final payment
17

quality standards
42 - 45

Design requirements
43, 44, 48

fitness for purpose
46

innovation
50

Faults, Defects rectification
69

defect-free Completion
71

after Completion
15

Work health and safety
management
Sched 5

Valuer
72

Claim resolution
73, 74

Issue resolution
75,

Expert Determinations

energy & water conservation,
waste management, resource
conservation, pollution reduction,
protection of environment, health
Sched 6
Environment
18
29
1
excellent
2
above expectation
3
meeting expectation
4
below expectation
5
unsatisfactory
Your rating (this
period)
Group rating (this
period)
Page 2 of 2
Topic
Contract
Clause
Objectives
Your rating (this
period)
Group rating (this
period)
work environment
Contract Relations
13 - 20

compliance with SA Government
Code of Practice for the South
Australian Construction Industry

industrial relations management

Subcontractor, Supplier and
Consultant performance
16
31 - 34
The participants should decide on an action plan during the meeting, after discussing project and contract
objectives, comments, observations and suggestions for improvement.
Page 1 of 2
ATTACHMENT 3
PERFORMANCE EVALUATION RECORD
The participants ratings for each topic are recorded here so that the overall performance can be assessed.
Contract Title:
Contract Number:
Date:
Rating system
»
»
»
1
Meeting Number Number
Month
Year
Communication
1
2
3
4
5
Time
1
2
3
4
5
Cost
1
2
3
4
5
Quality
1
2
3
4
5
Safety
1
2
3
4
5
1
2
3
4
5
1
2
3
4
5
Claim and Issue
Resolution
Environment
Contract Relations
1
2
3
4
2
3
4
5
6
7
1
excellent
2
above expectation
3
meeting expectation
4
below expectation
5
unsatisfactory
8
9
10
11
12
Page 2 of 2
5